New US law that could lead to a TikTok ban likely to be challenged in court
by Hanna Seariac, Deseret News · KSL.comEstimated read time: 5-6 minutes
SALT LAKE CITY — Unless TikTok is sold within 270 days, the app could face a ban in the U.S. app stores and hosting services.
Congress passed the TikTok measure in a 184-page bill bundled together with a foreign aid package on Tuesday night. President Joe Biden has signed it into law.
At this point, it's looking like TikTok will challenge the law in court and it'll be scrutinized. Here's a closer look at what legal experts have to say about the constitutionality of the measure and how Utah politicians voted on it.
Is the TikTok measure constitutional?
This isn't the first time the government has forced the sale of a major social media company.
The Committee on Foreign Investment in the United States told the Chinese gaming company Beijing Kunlun Tech in 2019 that its ownership of an online dating app raised national security concerns.
The app was sold off to a California-based group. That scenario differs from the TikTok situation in that Congress passed a law forcing the sale of the social media company rather than a committee demanding the sale.
This particular legislation around TikTok is tailored toward national security concerns rather than mental health issues or usage of the app by children.
"Beyond the immediate privacy implications, there are fears that TikTok could be leveraged as a tool for misinformation campaigns and data collection by foreign actors, particularly the Chinese government," said Lisa Plaggemier, executive director of the National Cybersecurity Alliance, adding that the interactive nature of the app could make it vulnerable to actors "seeking to undermine national security or advance foreign interests."
If TikTok challenges the law in court, as it has stated it will, the court could validate constitutionality by finding a compelling governmental interest and if the law is written narrowly enough to address that interest.
A 'unconstitutional ban in disguise'
William S. Duncan, constitutional law and religious freedom fellow at Sutherland Institute, said the question of whether or not the TikTok measure in the bill is constitutional is complicated.
It would be a different scenario if Congress had passed a law directly going after free speech, Duncan said. "In this case, the ban actually is only a potential ban." It's also possible that ByteDance could sell off TikTok within the allotted time frame.
Since the law is presented as a national security claim, Duncan said the court could find that the government has shown a compelling reason to limit free speech or religious freedom. It's more complicated than a traditional First Amendment case because "the courts will have to decide whether there's an overwhelming reason that the government might want to protect American users' personal data from what the bill characterizes as a hostile foreign entity."
But there's a second part of the strict scrutiny test — whether or not the courts will find that the law is tailored narrowly enough to address the compelling government interest.
"I think the court is going to look and say, is there a way that you could have kept this information secure without also infringing on other kinds of rights," said Duncan.
Whether or not TikTok could employ a free speech argument in court as it fights the law remains to be seen. Some see the law as a ban cloaked by language around national security and believe it doesn't pass First Amendment muster.
"This is still nothing more than an unconstitutional ban in disguise," Jenna Leventoff, senior policy counsel at the ACLU, said in a statement. "Banning a social media platform that hundreds of millions of Americans use to express themselves would have devastating consequences for all of our First Amendment rights, and will almost certainly be struck down in court. The Senate must strip these provisions from the bill."
Paul Matzko and Jennifer Huddleston, policy scholars at the Cato Institute, have argued that there's precedent working against the government in potentially banning TikTok. Pointing back toward Lamont v. Postmaster General — a case about Americans' ability to subscribe to foreign communist periodicals — the court ruled Americans should have access to these materials.
The TikTok question is similar, Matzko and Huddleston, wrote for The Dispatch. "The federal government does have a legitimate interest in protecting the American people from surveillance by foreign governments. But the powers being sought by Congress represent the most radical options on the table, when other alternatives could better balance security and the protection of users' free speech rights."
The Trump administration also made a move in September 2020 to prevent TikTok from being downloaded in app stores due to national security threats. The administration also attempted to ban transactions between Americans and ByteDance.
Before its implementation, U.S. District Judge Carl Nichols blocked the law calling it "arbitrary and capricious." He also indicated that the administration should have found a less restrictive way to address the issue of national security.
How did Utah politicians vote on the TikTok measure?
Rep. John Curtis, R-Utah, has spoken to the Deseret News multiple times over his support of the TikTok measure in the bill. On Wednesday morning after the Senate had passed the bill, he said it was reasonable and a good compromise.
Emphasizing that the measure was not an outright TikTok ban, Curtis said it's time for Congress to learn how it can regulate social media. He gave credit to states including Utah for determining where the legal lines are around social media legislation. He said the country is watching to see how we can deal with these issues.
Curtis voted for the bill containing the TikTok measure. Utah's all-Republican House delegation of Reps. Curtis, Blake Moore, Burgess Owens and Celeste Maloy were united on the TikTok measure.
Utah Sens. Mike Lee and Mitt Romney were split on both the passage of the bill and the measure regarding TikTok. Lee has previously criticized the TikTok measure for giving too much power to the executive branch. He voted against the bill.
Romney voted for the bill. "After months of needless delay, Congress has finally approved much-needed funding for Ukraine, Israel, Taiwan, and the U.S. military's operations in these key regions," Romney said in a statement after the bill's passage. "Just as I did in February, I again voted for this legislation because it is very much in America's interests to support our friends and allies in the face of threats from Russia, China, and Iran."
Contributing: Suzanne Bates