On December 6, the U.S. Court of Appeals for the District of Columbia Circuit upheld a law — by a vote of 3-0 — that could lead to a ban on TikTok as soon as January 19.
The law, Protecting Americans from Foreign Adversary Controlled Applications Act, signed by President Biden in April, was the culmination of a years-long effort in Washington over the short-form, video-sharing app, which the government sees as a national security threat because of its connections to China.
“The First Amendment exists to protect free speech in the United States,” said the court’s opinion, which was written by Judge Douglas Ginsburg. “Here the Government acted solely to protect that freedom from a foreign adversary nation and to limit that adversary’s ability to gather data on people in the United States.”
TikTok has petitioned the Supreme Court to prevent the Biden administration from enforcing the ban provision in the act.
In a May 2024 Pew Research Center survey of 3,600 American adults, 43 percent of Americans view China as an enemy of the United States, the highest level since 2021 when Pew first began to ask this question. Moreover, 81 percent of U.S. adults have an unfavorable view of China, a view that has held relatively steady for the last five years.
With such strong negative American public opinion about China, it is not surprising that there was such strong bipartisan support for the enactment of the act. While Donald Trump, in his first administration, made attempts to restrict TikTok, he has recently campaigned to oppose such a ban if the company loses its appeal to the Supreme Court.
Judge Ginsburg noted that, while the court’s decision had “serious implications” for TikTok users, “that burden is attributable to (China’s) hybrid commercial threat to U.S. national security, not to the U.S. government, which engaged with TikTok through a multiyear process to find an alternative solution.”
The opinion noted that the Chinese government could use TikTok to assemble structured data sets on Americans, such as through Chinese-hacking operations against the Office of Personnel Management, or to track the locations of U.S. federal employees and contractors, or build dossiers for extortion purposes.
As of 2020, the U.S. military banned its members and civilian employees from using TikTok on government devices, as subsequently did the Transportation Security Administration and other federal agencies.
Chinese laws — specifically, the National Intelligence Law of 2017, Data Security Law of 2020, and Cryptology Law of 2020, require Chinese businesses, investors, academic institutions and citizens to support and facilitate China’s government access to the collection, transmission and storage of data requested by Chinese government officials — laws that violate the letter or intent of U.S. and international law and accepted policies.
Moreover, Chinese companies may be required to store data within China’s borders and to permit access by the government of data under the pretense of national security. U.S.-based internet companies are all blocked from operating in China by the government’s “Great Firewall” censorship regime.
How could TikTok be conceivably used to undermine the democratic election process — and “freedom of speech” — in the United States? A recent example illustrates how Romania has canceled its democratic election results because the front-runner, Calin Georgescu, a pro-Russian, NATO-skeptical candidate who had been polling 5 percent voter support before the election, won the first round of voting. However, Romanian authorities uncovered that Russia — a Chinese ally — used 25,000 TikTok accounts to operate a coordinated online campaign to influence Romanians to vote for Georgescu, in this case, with an initial successful outcome.
When the United States and the Soviet Union were “Cold War” adversaries, would the U.S. government have tolerated a Soviet communications-related company operating freely in our economy? If not then, why now?
