The overreaching TikTok ban could also harm US industry
For all of its interpretations over time, the First Amendment to the U.S. Constitution is pretty straightforward: “Congress shall make no law … abridging the freedom of speech or of the press.”
This starkly contrasts the recently enacted Protecting Americans from Foreign Adversary Controlled Applications Act, which, in its over 1,800 words, targets TikTok and appears to do precisely what the Bill of Rights forbids Congress from doing.
The bill applies to TikTok, its parent corporation ByteDance, and its subsidiaries, successors and owned and controlled entities. It also applies to other companies “controlled by a foreign adversary” that are presidentially determined to “present a significant threat to the national security of the United States” as detailed in a notice and report to Congress “describing the specific national security concern involved.”
However, despite providing a 90-day window to challenge the determination, the law fails to identify what national security concerns merit app shutdown or divestiture or provide a way of quantifying a “significant threat.” Thus, it is nearly impossible for a company to know if they are venturing precariously close to (or have crossed) the line that may result in their shutdown or divestiture.
Even more problematically, companies can challenge the determination only after the “significant threat” is outlined in the public report to Congress. However, this places the burden on the respondent instead of the government. It is also easy to imagine the complexity of the litigation that would ensue, making seeking redress difficult for all but the largest firms.
This, though, isn’t the only problem with this law. The law also penalizes entities that “enable the distribution, maintenance, or updating of” proscribed applications via “services” or “hosting services.” This is akin to punishing sneaker companies for enabling murder by selling shoes to a murderer. There is no requirement in the law that these services be provided knowingly for the provider to be sanctioned.
Even general-purpose service providers could be entangled if they are used by anyone (not just the company) for app distribution. To comply, providers would be forced to inspect every byte of data they transmit to ensure that it doesn’t contain the app or in some way enable its “distribution, maintenance or updating.”
Even more problematic is the insertion of language that limits challenges to the act to only 165 days after enactment. Should this be upheld, it requires anyone who could potentially be ensnared in the future to file with the U.S. Court of Appeals for the District of Columbia in the next five-and-a-half months to seek anticipatory relief. This is particularly problematic for those who may be inadvertently trapped and may not realize their risk or have the resources to spend on challenging a law that poses a vague and unlikely threat to them.
Finally, the law demonstrably restricts speech and the press. Banning TikTok and any entity that would be a covered company, meaning that they allow users to “generate, share, and view text, images, videos, real-time communications, or similar content,” would unquestionably impair speech, as has already been ruled by the U.S. District Court in Washington.
This is bad law, and Congress should act immediately to correct it.
The motivations behind the law are laudable. We can and should take action to prevent societal threats from any source, including social media. To do this, we should decide what actions or activities pose these threats and ban them specifically. Companies should be able to readily determine whether they are on the right side or wrong side of the law at any time. They shouldn’t have to wait for a pronouncement or report from the White House.
Americans should know why and under what circumstances social media providers will be blocked or banned. We should be able to discuss these conditions specifically as part of a broad national debate and lawmaking process.
If a company’s app is banned, it should be the responsibility of the government to take action to shut it down. Internet and hosting providers and others should not be conscripted as law enforcers through the threat of staggering fines for services they may not even know they are providing.
While this law was designed to impact TikTok, what it damages may be far more significant.
Jeremy Straub is the director of the North Dakota State University Cybersecurity Institute, an associate professor in the NDSU Department of Computer Science and an NDSU Challey Institute senior faculty fellow. The author’s opinions are his own.
Date: | |
Tag: | Tiktok |
Topics
Filter
-
TikTok Creators Sue U.S. Government Over Law That Could Ban the Platform
A group of eight content creators who rely on the social media app toreachcustomers and audiences challenge the law requiring Chinese parent ByteDance to sell its U.S. business or be banned.Inc. - Business - Tiktok -
TikTok creators sue U.S. government in a bid to stop potential ban
TikTok creators sued the U.S. government on Tuesday, alleging a new law that could ban the app violates their free speech rights under the 1st Amendment. The legislation is meant to force Chinese owner ByteDance to sell the service.Los Angeles Times - Entertainment - Tiktok -
North Carolina could ban face masks for medical reasons in public
The North Carolina state Senate voted along party lines Wednesday to ban anyone from wearing masks in public, even for health reasons. Republican supporters of the ban said it would help law enforcement crack down on protesters who wear masks. ...The Hill - Politics -
Billionaire Frank McCourt said he is organizing a bid to acquire TikTok in the U.S., weeks after the passage of a law that could force the platform's Chinese owner to sell.
Billionaire Frank McCourt said he is organizing a bid to acquire TikTok in the U.S., weeks after the passage of a law that could force the platform’s Chinese owner to sell.The Wall Street Journal - World -
Siemens Cuts Digital Industries Outlook on China Weakness
Siemens cut fiscal 2024 guidance for its closely watched digital industries unit, citing a slower-than-expected recovery in its China automation operations, but raised its forecast for the smart infrastructure division.The Wall Street Journal - World - China -
The woman trying to drive change in the sex industry
Alana is now using her experiences to help others and contribute to research.BBC News - Top stories -
High inflation harms older households — and two factors determine who is most at risk, research finds
Retirees and near retirees face unique dilemmas when it comes to trying to make their money last amid rising prices.CNBC - Business -
Cancer claims Iditarod champion Rick Mackey. His father and brother also won famed Alaska race
Musher and dog trainer Rick Mackey has diedABC News - Sports
More from The Hill
-
Biden has become detached from economic reality
The vast majority of Americans recognize Bidenomics as a disaster for the nation.The Hill - Politics - Joe Biden -
Oversight delays Garland contempt hearing for members to attend Trump trial
The House Oversight Committee shuffled its schedule, bumping a hearing to hold Merrick Garland in contempt of Congress so some of its members could instead attend former President Trump's hush money trial. The panel was set to meet early Thursday, ...The Hill - Politics - Donald Trump -
Eric Adams says comment about migrants being ‘excellent swimmers’ based on past conversations with them
Talking about the city’s shortage of lifeguards, New York City Mayor Eric Adams said migrants could fill the openings because they are “excellent swimmers.” He later noted that his comment was based on past conversations with migrants. Adams was ...The Hill - Politics -
Dean Phillips says RFK Jr. should be included in Trump, Biden debates
Rep. Dean Phillips (D-Minn.) praised former President Trump and President Biden's decision to debate one another but said he thinks independent candidate Robert F. Kennedy Jr. should also be included. Asked by Fox News’s Bret Baier what he makes ...The Hill - Politics - Joe Biden -
Johnson defends decision to attend Trump trial, calling the case ‘an atrocity’
Speaker Mike Johnson (R-La.) defended his decision to attend former President Trump’s hush money trial in New York earlier this week, calling the case an “atrocity.” In an interview with NBC News, Johnson said he rode in the car with the former ...The Hill - Politics - Donald Trump