How a TikTok ban in the U.S. could violate 1st Amendment rights

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• Geoff Bennett:

  The U.S. House voted overwhelmingly today to pass a bill that could ban TikTok here in the U.S. unless the app cuts ties with China. The bill now heads to the Senate, where its fate is at the moment unclear.

  Last night, we heard from the lead sponsors of the bill about why the legislation is necessary. Tonight, we hear from an opposing voice.

  And, for that, we're joined by David Greene, civil liberties director and senior staff attorney at the Electronic Frontier Foundation.

  Mr. Greene, thanks so much for being with us.

  And you, as I understand it, oppose this bill on First Amendment grounds. We spoke last night with the lead sponsors of that legislation, as I mentioned, Congressmen Gallagher and Krishnamoorthi. And Congressman Krishnamoorthi said of China's practices that there's no First Amendment right to espionage, there's no First Amendment right to harm our national security.

  Why is he wrong, in your view?

• David Greene, Electronic Frontier Foundation:

  He's not thinking about the First Amendment rights of U.S. people who want to use TikTok and their right to communicate with each other through it and to receive information from TikTok in the way they receive it now.

  U.S. people certainly have a right to use communications tools like TikTok to get information from them and to put out and to use them to disseminate their own information. So I understand that Representative Krishnamoorthi is very concerned about the First Amendment rights of China, but that's really not what we're concerned about.

  We're concerned about the First Amendment rights of U.S. users.

• Geoff Bennett:

  Doesn't China present a special case? The FBI director, Christopher Wray, said that China is the defining threat of this generation, and the Chinese Communist Party requires Chinese companies to share information and user data upon request.

  That's the perceived threat that TikTok poses.

• David Greene:

  Well, that doesn't really make — I defer to the FBI director on the threat posed by China in particular, but I will note that China is not unique in requiring its companies to provide information to them upon request.

  The U.S. does much of the same thing through national security letters and through surveillance conducted under Executive Order 12333. There's a whole congressional debate going on now about the proposed renewal of section 702 surveillance. So, the U.S. has many of these same tools.

  China is not unique among nations in requiring companies located in it to provide Internet user data. Now, if China does pose some particular threats, the U.S. can react to it. The question is whether forcing the sale or banning this platform from operating as it currently operates is the properly tailored way of addressing that threat.

  And our — what we're saying is that it's not, or at least the government hasn't so far proven that it is. It hasn't talked about this law in terms of the First Amendment scrutiny and the specificity that the First Amendment requires.

• Geoff Bennett:

  So what then would be a more appropriate solution?

• David Greene:

  Well, there's a few things.

  One of the reasons it's hard to talk about what a better solution would be is because the justification for this law keeps on changing. Up until yesterday maybe, the — those who support this law have been very strongly saying that this law is not about the content on TikTok at all. This is all about just some national security threat that we can't really tell you about, that it's just dangerous for China to have all this data about U.S. users.

  I think what we saw from your interview yesterday and from a lot of the statements made on the floor today that this is very much of concerns about the content that U.S. users get from TikTok. We heard this yesterday.

  I believe Representative Krishnamoorthi talked about how — talked about how, in China, they get healthy content about healthy living and STEM education, and, in the United States, it's about drug paraphernalia and oversexualization.

  So we know this is clearly about content. It's very difficult under the First Amendment for the government to restrict content. So, if the goal of this bill is to say, we don't like the content you're getting, that's a very difficult thing for the government to do.

• Geoff Bennett:

  So if TikTok is forced to divest, how does that infringe upon one's First Amendment rights? Because if I want to post on TikTok, I can still post whatever I'm posting no matter who owns it.

• David Greene:

  Well, there's two things that could happen, right?

  One is that it would — it will just shut down, it won't have a non-Chinese owner. That could happen. Then those who previously used the site and received information from it wouldn't have that, wouldn't get that anymore.

  If they're sold to a U.S. company or sold to other ownership, then that still may affect First Amendment rights, because the new owners may have different editorial policies. In fact, it seems like, based on the comments the sponsors gave on your show yesterday, is that they want it to have different editorial policies.

  They want it to show different content to U.S. users and to treat their content in different ways. So, again that's an infringement on the users' First Amendment rights. What Congress wants is for them to get different information. They're doing that through having different ownership and different editorial policies.

  I think we have all seen how what a change in ownership can mean for the editorial policies of a social media company and for users' experiences with it and whether they want to engage with that service.

• Geoff Bennett:

  You and your organization have called instead for comprehensive data privacy legislation. How exactly would that work and how would that solve this TikTok problem?

• David Greene:

  So, again, this really relies on, if the problem is a data — is a data privacy problem — and this is what some people have said early on to justify the bill, a concern that too much U.S. user data was flowing to the Chinese government and then that itself represented a national security concern.

  And we agree that the flow of U.S. user data is a serious problem, not just for national security reasons, but also for individual privacy purposes. But you address privacy concerns by passing privacy laws. What we do not have in the U.S. is comprehensive data privacy regulation that controls how much data companies can collect about their users in the first place, when — to the extent they can retain such data and how they can share such data.

  If companies, TikTok or anybody else, were not collecting and retaining and sharing so much data in the first place, you wouldn't need to single out TikTok for such exceptional treatment. It's hard to take Congress seriously about data privacy if they don't pass data privacy laws, if they don't look at how TikTok and other social media companies retain user data, and if they don't look at how data brokers then purchase and then redistribute that data to lots of actors, including governments and including our enemies.

• Geoff Bennett:

  David Greene with the Electronic Frontier Foundation, thanks for your time and your insights this evening.

• David Greene:

  Thanks for having me.