Since I participate in no “social media”, as that term is commonly understood, I have never used Tik Tok.
So why (I’ve been asked) do I support the law banning its use in the United States? A fair question. First … what exactly is the “ban”.
In 2024, the United States Congress passed (and the President signed) the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA) (Pub. L. 118–50, div. H, 138 Stat. 955). It specifically targeted Tik Tok.
Congress determined that because Tik Tok is owned by ByteDance, a company based in China, “Chinese law enables China to require companies to surrender data to the government, making companies headquartered there an espionage tool of China”, and that, “China has engaged in extensive and years long efforts to accumulate structured datasets, in particular on U. S. persons, to support its intelligence and counter intelligence operations.”
Because the Chinese government can require ByteDance to share whatever data it obtains through Tik Tok with that government, Congress gave ByteDance a choice: Either sell its ownership of Tik Tok to an entity not subject to control by the Chinese government, or Tik Tok could no longer operate in the U.S.
ByteDance had to make that choice by January 19, 2025, unless the President grants them a one-time 90-day extension. President Biden declined to grant an extension, and as of this writing, President-elect Trump has not stated he would do so either.
ByteDance, and some Tik Tok users, challenged that law in court (of course). They claimed it violated Free Speech rights under the First Amendment of the U.S. Constitution.
That challenge ended up in front of the United States Supreme Court (SCOTUS). ByteDance (and the users) lost. The SCOTUS upheld the PAFACA — declaring it did not violate the First Amendment.
So what does that mean for those who have been using Tik Tok as ‘creators’ or ‘viewers’?
That question has two parts: First, how will the ban be enforced? Second, why did the Court reach that legal conclusion?
The answer to the first question was explained to me by an acquaintance who works with computers at the Kennedy Space Center. I’m not sure what exactly he does (it’s classified) but he has a PhD in some sort of computer science I don’t even begin to understand — and knows more about computers than anyone I personally know.
He’s a “computer nerd” (also a tri-athlete), whom I met when he helped me with computer crimes back in my prosecutor days. Here’s how he says the ban will work.
To use Tik Tok, you must download the app to your device. After the ban goes into effect, you will no longer be able to obtain the app through any “app store” doing business in the U.S.
He also thinks U.S. internet and cell-phone providers will probably block it as well, but isn’t sure of that.
For those who already have the Tik Tok app, if it’s not blocked outright by providers, then users will still be able to access Tik Tok. But they will not be able to receive software updates, or “patches”, so the Tik Tok usage will “degrade” (rapidly, apparently) and eventually not work at all.
That is the extent of my knowledge of that question. I leave it to others to explain it far better than I ever can (such as why you may be able to access it through VPN – whatever that is!)
My expertise lies in answering the second question. How the SCOTUS decided the case.
I’ve previously explained that over the past few years the SCOTUS has clipped the wings of federal bureaucrats by a series of decisions limiting their ability to enact regulations which exceed their authority. If you’re interested, you can find my explanations here…
The theme of those SCOTUS decisions is that bureaucracies exist only as creations of the legislature, and thus bureaucrats have only the authority conferred by the law which created them. Thus, they can only promulgate regulations within the scope of the authority they’ve been given by the legislature — and any reg that exceeds that authority is null.
Last year the SCOTUS made it clear that courts, not bureaucrats themselves, decide if a regulation comports with, or exceeds, the legislative grant of authority. I explained that here.
Contrast that limited regulatory authority with the far more extensive law-making power of the legislature. Congress, not some bureaucrats, banned Tik Tok — and that difference is significant to the SCOTUS’ decision why the PAFACA doesn’t violate the First Amendment.
As the SCOTUS explained, when striking down onerous bureaucratic regulations, courts don’t have to defer to bureaucrats as to whether a regulation is validly within their authority. But deferral of courts to the validity of laws passed by Congress is a long-settled doctrine of constitutional law.
Laws passed by Congress are presumed to be valid. “Proper respect for a co-ordinate branch of the government requires the courts of the United States to give effect to the presumption that congress will pass no act not within its constitutional power.”
In upholding the PAFACA, the SCOTUS went into detail explaining how Congress determined it was necessary to ban Tik Tok on the basis of national security — and that the Court was in no position to second guess that congressional determination.
“We cannot displace [the Government’s] judgment respecting content neutral regulations with our own.”
The Court noted that in considering the PAFACA, Congress focused “overwhelmingly on the Government’s data collection concerns, noting the breadth of Tik Tok’s data collection, the difficulty in assessing precisely which categories of data the platform collects, the tight interlinkages between Tik Tok and the Chinese government, and the Chinese government’s ability to coerce companies in China to provide data.”
Also relevant to the Court was that the PAFACA was enacted with “striking bipartisan support” (352-65 in the House of Representatives, and 79-18 in the Senate). Given the current polarized political environment, that is truly “striking”.
But the SCOTUS decision was more than about national security. It was also about the right of privacy of individual citizens… like me, for instance.
Apparently, when you download Tik Tok to your device, you consent to give access to all the information you store there — including not just your own. If you store my contact info, or photos of me, or prior texts between us, or stored communications about me that you’ve had with others, ByteDance can see (and capture) it all. (The reason I have never, and will never, send a text.)
And if Tik Tok can get it — so can the Chinese government.
You may have consented to open your life to the Chinese government when you downloaded the Tik Tok app. (But I damn sure didn’t.)
I have no illusions about the reality of privacy in the digital age. It’s bad enough that my own government is probably spying on me. But that doesn’t mean I want to share my life with the Communist Party in China.
As Justice Gorsuch notes in his concurring opinion, even if Tik Tok users consent to having their personal data gathered by ByteDance, those whose personal info may be stored on the Tik Tok user’s device may not have consented.
Tik Tok mines data both from Tik Tok users and about millions of others who do not consent to share their information.
Though that also may be the reality with other social media platforms, Tik Tok is different.
TikTok has special characteristics — a foreign adversary’s ability to leverage its control over the platform to collect vast amounts of personal data from 170 million U. S. users.
That doesn’t even include the other millions of us who don’t use Tik Tok, but who may communicate with users.
Not included in the Court’s opinion is another reason to ban Tik Tok: the amount of time wasted watching it!
How much work time is spent looking a Tik Tok? According to some managers I’ve talked to, among the Gen-Z crowd, it’s become a problem.
Mental health practitioners are only beginning to understand how constantly staring at phones, in general, is re-wiring the human brain. The adverse effect on teens especially, and younger children may be irreversible.
It’s doubtful Congress could have banned Tik Tok on such disputed grounds as the effect on kids — or even less likely, based on my privacy. But they did ban it on the basis of national security — and the Supreme Court gave it their blessing.
As do I.