Supreme Court judges TikTok

On January 10, the United States Supreme Court heard pleadings For TikTok, Inc. v. Garlandwhich will undoubtedly become a landmark case in both First Amendment and national security law. The court was asked to determine whether the Protecting Americans from Apps Controlled by Foreign Adversaries Act (“Controlled Applications Act”) can be constitutionally applied to the popular short video sharing service. TikTok. In short, the Controlled Applications Act requires TikTok to divest its Chinese stake or face exclusion from the United States. The parent company has ruled out a forced sale or divestment. If the court upholds the law as applied, TikTok will disappear from app stores across the country.

TikTokwho has 170 million per month American users, belongs to ByteDancea company headquartered in China, which, in turn, is ultimately susceptible to pressure or control from the Chinese Communist Party. TikTok’s competitive advantage, which makes it a favorite short-video service among Americans, lies in its proprietary algorithm that ensures that users are recommended videos that anticipate the viewer’s tastes, thereby keeping the user glued to their screen . Significant percentages of TikTok users self-assessment using the app “get informed” (41%) and “follow political news” (36%).

In exchange, TikTok collects a surprising amount of personal data about its users. Like the The D.C. Circuit Court noted in its notice confirming the ban, “TikTok automatically collects large swaths of data about its users, including device information (IP address, typing patterns, device activity, browsing and search history, etc.). ) and location data (triangulation of the SIM card or IP address). address data for newer versions of TikTok and GPS information for older versions)… It may also collect image and audio information (including biometric identifiers and biometric information such as face and voice prints); metadata (describing how, when, where and by whom the content was created, collected or modified); and usage information (including what content users upload to TikTok). Simply put, every TikTok user voluntarily allowed Beijing ultimate access to personal data of this type, as Justice Sotomayor said in her 2012 opinion in United States v. Joneswhich “reflects a wealth of detail about his familial, political, professional, religious and sexual associations.”

If the US government could control TikTok, you can bet civil liberties advocates would (rightly) sound the alarm about President-elect Donald Trump or potential FBI Director Kash Patel having access to a tool that could manipulate secretly the information diets or information stores of Americans. sensitive personal information. These concerns hardly abate given TikTok’s relationship with the Chinese government, which has recently embarked on a determined march toward the future. collection of cyber intelligence against US targets.

The People’s Republic of China is currently engaged in a hostile competition with the United States and our Western allies, part of which involves waging an information waras a recent report from the Foundation for Defense of Democracies puts it, both to “undermine Americans’ trust in their leaders, their government, and each other…(and) manipulate American public opinion regarding Hong Kong, Taiwan, Tibet and Xinjiang. with the ultimate goal of “weakening and dividing Americans” in order to “remove any U.S. impediment to Beijing’s control and oppression at home and the ‘might for good’ foreign policy at home.” stranger “. The US government, through the Controlled Applications Act, determined that TikTok was at risk “serve as a force multiplier» for this political war campaign against America.

This is not to deny the potential risks associated with freedom of expression and association at issue here. As even the laziest student of American history knows, American presidents, from John Adams to Woodrow Wilson to Franklin Roosevelt, have overreacted to perceived foreign threats by attacking the Constitution with blunderbusses. Fortunately, the Controlled Requests Act is not a sedition law. This is a carefully crafted bill. It takes a scalpel, not a meat grinder, to solve the problem.

In its entirety, the law carefully and discreetly targets only certain applications (and not all potential forums), like TikTok, that are produced by narrowly defined “covered companies” “controlled by a foreign adversary.” The status limits only four of these adversaries: China, as well as Russia, Iranand North Korea – all allies in Beijing’s hostile competition against the West. In particular, the law is a big improvement over an earlier bill, called “Restrict the law», which was written with less care and which would have deserved to be invalidated by the courts. Accordingly, given the care taken by Congress in drafting it, as well as the proportionate seriousness of the threat, the Supreme Court should decide that the government has, as applied here, narrowly tailored its law to a compelling public interest. national security.

However, this law is not a panacea. China will not stop trying to spy on or influence Americans just because the Supreme Court determines that the Controlled Apps Act is constitutional. We also cannot be sure that future efforts by the U.S. government to counter these threats will be as constitutionally respectful as the Controlled Applications Act. On the contrary, history suggests otherwise.

Fortunately, there is a better approach: one that shifts the risk from the Constitution to China. The United States has been the victim of Beijing’s political war and cannot end it simply through case-by-case defensive legislation. America establishes deterrence by demonstrating that it can and will lead the fight against our adversaries. The ultimate response is counterattack, not censorship.

To this end, the United States must build a robust cross-agency capacity within the executive branch to collect evidence of adversaries’ information warfare operations, analyze vulnerabilities among hostile states, and allocate resources to the State concerned to carry out offensive (or other) information operations. appropriate disruptive measures) abroad if necessary. If China knew we would respond the same way election interference, political warOr Manipulation of TikTok By holding things at risk in China as valuable to the CCP as a robust and open U.S.-led civil society is to us, Beijing might consider a less hostile path.

As the saying should go, “good deterrence makes good neighbors.”

Zac Morgan is an attorney specializing in First Amendment and campaign finance law. He previously worked for the Free Speech Institute and currently serves as legal counsel to Commissioner Allen Dickerson of the Federal Election Commission. The views expressed in this article are his own and do not represent an official opinion of the U.S. Government.

Image: Shutterstock.com.