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10/13 - TikTok Ban

Introduction

In August of this year, in the midst of tensions between the U.S and China,  President Donald Trump signed two executive orders that banned two chinese-based applications; one of them is the popular app TikTok. The Trump administration banned this app because of “national security” concerns.  This ban would be effective September of this year, which after that the U.S will ban any “transaction by any person” with the parent company of TikTok. But even then, there is debate on what does it mean to “transact” as it could mean that it prevents U.S advertisers from buying ads or it also means that even downloading could be considered a “transaction.” What is TikTok?TikTok

  For those who do not know, TikTok is a Chinese social media site owned by ByteDance. More than an estimated 100 million use TikTok, especially amongst the younger generation in the U.S. However, TikTok collects data from its users, so there is a concern that this app would send users’ data to the Chinese Communist government. But TikTok says it has not sent data to the Chinese government and that its U.S. user information is stored in the state of Virginia and backed up in Singapore. But is this constitutional? Does it violate the first amendment? I will get into this question.


Is it constitutional?

In response to the executive order, Tik Tok filed an amicus curiae brief in a federal court in San Francisco claiming that this ban is “unconstitutional and political.” The organization stated that:


 “A ban on TikTok violates fundamental First Amendment principles by eliminating a specific type of speaking, the unique expression of a TikTok user communicating with others through that platform, without sufficient considerations for the users’ speech.” - Tik Tok

But last week in Washington D.C, TikTok included in their brief that the company’s role as a user and speaker on its own service so that it argues that indeed, it violates the first amendment. As a result, a judge in Washington D.C paused Trump’s plans to remove TikTok from app stores, which means that they remain available until November when they find an American company or they risk getting banned.

This case follows a precedent of two major cases that have to do with freedom of speech, Packingham v. North Carolina and Reno v. ACLU. The Packingham v. North Carolina was a supreme court decision that ruled the government cannot prevent criminals from using the internet, citing the first amendment. However, there was a caveat to it, as businesses that are not owned by the government can still ban a sex offender. The Reno v. ACLU was a case that signified that the Communications Decency Act of 1996 (which attempted to regulate pornographic material on the internet) violated the first amendment. Based on the precedent cases, it is definitely possible that the supreme court will side with TikTok.

Thoughts of the ban

    As a response of this Tiktok ban from the U.S government, I do not believe that this ban would work because people will find a way to get around with downloading TikTok. People would most likely use a Virtual Private Network (VPN) which makes it appear as if the person’s device is in a different country. However, there is a catch to it as VPNs would only work if the ban was enforced on a device from a device basis, instead of tech companies removing the app in application stores.  This was the case in India, where they banned Tik Tok, that the app did not function properly even on a VPN. Another reason why it would not work is that tech companies are unlikely to comply with Trump’s Tiktok ban. If that was the case, users could modify their phones, or “jailbreak” so that they could access these banned apps. But even then, it could cause viruses in their phones. Regardless of these risks, people will find a way to get around with this ban. Like the U.S border wall, people will find a way to get around the Tiktok ban. Overall, this political opportunism by the Trump administration will not be effective.


Sources:

  1. https://www.brookings.edu/blog/up-front/2020/08/07/why-is-the-trump-administration-banning-tiktok-and-wechat/

  2. https://slate.com/technology/2020/09/tiktok-wechat-first-amendment-free-speech.html

  3. https://www.mediapost.com/publications/article/355666/tiktok-ban-violates-first-amendment-digital-right.html

  4. https://www.theguardian.com/technology/2020/aug/07/donald-trump-tiktok-executive-order-explainer

  5. https://arstechnica.com/tech-policy/2020/08/tiktok-sues-trump-admin-says-ban-is-unconstitutional-and-political/

  6. https://www.latimes.com/entertainment-arts/business/story/2020-09-27/trump-tiktok-ban

  7. https://www.oyez.org/cases/2016/15-1194

  8. https://www.oyez.org/cases/1996/96-511

Written by Brandon Blanco

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