On Friday SCOTUS Will Decide Whether TikTok Can Be Banned; We Told It The First Amendment Says No

www.techdirt.com On Friday SCOTUS Will Decide Whether TikTok Can Be Banned; We Told It The First Amendment Says No

It seems unfathomable that we’re even here. The First Amendment is one of our clearer constitutional provisions. “Make no law,” it says, “abridging the freedom of speech.” And yet, with the “Protec…

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3周前

On Friday SCOTUS Will Decide Whether TikTok Can Be Banned; We Told It The First Amendment Says No

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On Friday SCOTUS Will Decide Whether TikTok Can Be Banned; We Told It The First Amendment Says No

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On Friday SCOTUS Will Decide Whether TikTok Can Be Banned; We Told It The First Amendment Says No

www.techdirt.com /2025/01/07/on-friday-scotus-will-decide-whether-tiktok-can-be-banned-we-told-it-the-first-amendment-says-no/

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Is it actually a free speech issue, though?
It's not as though SCOTUS is trying to rule on whether to ban short-form video or content from particular person. The allegation in regard to TikTok isn't 'dangerous speech', it's the platform's collection of user data and the manipulation of available content via an algorithm that they claim is a tool of a hostile foreign entity. Neither of those issues constitute 'speech' whether related to a foreign or domestic company.
It seems to me like this is being framed as a speech issue to protect other vendors with hostile algorithms. If Google were forced to stop pushing AI and paid results to the stop of its searches, would that be a free speech issue? If Facebook were forced to put more weight on users' choices about what shows up on their feed rather than pushing dodgy political posts and paid advertisements, would that be a speech issue?
Honestly, deciding that toxic algorithms are protected speech seems like a much more dangerous precedent to me than coming to a conclusion that a company that's beholden to a foreign entity that may be forcing it to engage in hostile intelligence operations and soft power can be restricted.
If someone made a piece of malware that ropes your PC into a botnet and uses it to perform DDOS attacks, would banning it be a speech issue if it happens to come in the form of a blogging platform? A chat client? A music sharing service?
Just having speech on a platform doesn't mean everything that platform does qualifies as speech and requires first amendment protections.
- The allegation in regard to TikTok isn’t ‘dangerous speech’
  ...On the very surface level, sort of.
  Romney replied, "Some wonder why there was such overwhelming support for us to shut down potentially TikTok or other entities of that nature. If you look at the postings on TikTok and the number of mentions of Palestinians, relative to other social media sites — it's overwhelmingly so among TikTok broadcasts."
  The allegation in regard to TikTok isn’t ‘dangerous speech’, it’s the platform’s collection of user data and the manipulation of available content via an algorithm that they claim is a tool of a hostile foreign entity.
  If the US government really cared about collection of user data and manipulation of content, they could demand things like increased transparency and open protocols for social media. Instead, they are here requiring that the issue be redressed with TikTok being shut down or handed over to a company subject to direct US influence and control.
  This is indistinguishable from an act of censorship. If the government is intimately connected with the people and companies running the oligopoly of services which control moderation of virtually all public discourse in the US, when it uses force to defend that oligopoly and eliminate competition that is not in the club it is abridging the freedom of speech, even if it is doing so through one layer of proxy.
- I'm pretty close to a free speech absolutist. I don't think I've ever disagreed so completely with TechDirt. This is not a TikTok ban. It's a ByteDance ban. Corporations aren't people. The government is fully within it's rights to force a foreign state owned corp to sell or shutdown operations in the US.
  Like you said this is another Corp vs Gov power play, and the public has largely been duped into supporting the Corpos again.
- the platform’s collection of user data
  this "oh banning TikTok is good because TikTok collects a bunch of user data" talking point has hoodwinked a whole lot of tech-savvy, generally-left-of-center people who really should know better.
  thought experiment: I go out and buy a brand-new phone. Apple or Android, it doesn't matter.
  I install some apps. let's say TikTok, Facebook, and Twitter.
  all of those apps use the platform APIs published by Apple or Google respectively.
  all of them are equally capable of collecting user data.
  TikTok is not unique or special in any way when it comes to data harvesting.
  oh, except TikTok is owned by Ghyna, and everyone knows that Ghyna is evil and scary. surely that makes it different, right? US-based companies can harvest our data all they want, and sure maybe an EU-based company too. but Ghyna harvesting our data? that's a bridge too far!
  and that's why we need to ban companies owned by Ghyna from harvesting our data!
  here's the problem with that. I install another app. I don't like the stock Weather app that comes with my phone, so I install Totally Trustworthy Weather from a developer named Absolutely Not Spyware LLC.
  that weather app needs location permissions, obviously. and network access. and to be allowed to run in the background constantly.
  because it's given permissions to run in the background, there's a decent chance the weather app can actually collect more info about me than TikTok/Facebook/Twitter/etc.
  but, why would a weather app collect data like that? what's it going to do with it? it's just a weather app, surely it doesn't care, right?
  wrong - it's going to sell all the data it collects on me to a data broker.
  (read Temptations of an open-source browser extension developer if you're skeptical of how much money is thrown around in order to collect data of this sort)
  if those nefarious people in Ghyna want data about you...they'll just buy it from a data broker, the same way everyone else (including the FBI) does.
  if Congress had passed some sort of GDPR-ish law, that applied across the board to all forms of data harvesting, I'd be all in favor of it. but obviously they're never going to do that.
  instead, what started out in 2020 as a "Ghyna bad" policy from Trump now has bipartisan support and people on the left defending it on data privacy grounds. we live in the stupidest goddamn timeline.
  
  the comment you are responding to pretty levelheadedly describes why they dont agree that it's only tiktok bad and that being in favor of this being a 1st ammendment issue specifically could make every issue you bring up actively worse. it does not appear you are responding to them. the problem you are describing is real, there's a substantial nationalism component to this and it's bad when us companies do it as well. but you arent responding to their point about framing this as a 1st ammendment issue being problematic.
  
  you arent responding to their point about framing this as a 1st ammendment issue being problematic.
  I've posted previously about why "the federal government can require Apple and Google to remove apps it doesn't like, and that has nothing to do with free speech" is a laughable position. I didn't feel like rehashing it here.
  
  i think you need to do more to justify that this is viewpoint discrimination, "tiktok" does not appear to me to be a viewpoint. i think you have a stronger argument with saying it is the broader content based discrimination, though. however id still question if that's true with respect to corporations hosting eachothers services. id say you have a stronger argument than viewpoint discrimination by saying it violates the first ammendment of the users of tiktok, personally, though the courts might disagree. i dont really care about apple and google's right to free speech at anywhere near the level of individual humans.
  
  “tiktok” does not appear to me to be a viewpoint
  seriously? have you not paid attention to any of the arguments in favor of the ban that boil down to "it's pushing evil Chinese Communist propaganda into the minds of our precious children"?
  here's the original bill - H.R.7521 - Protecting Americans from Foreign Adversary Controlled Applications Act.
  it was introduced by Mike Gallagher (R-Wisconsin).
  here's a tweet of his from March:
  "This is my message to TikTok: break up with the Chinese Communist Party or lose access to your American users. America’s foremost adversary has no business controlling a dominant media platform in the United States." - Rep. Gallagher
  and from November 2023, in a Fox News appearance:
  Rep. Gallagher on why it’s critical to ban or force a sale of TikTok:
  “It would be national self-suicide to allow the dominant media platform in America to be controlled, or at least be influenced by, the Chinese Communist Party.”
  the advocates for the ban have been very clear, from the start, that they believe TikTok has a viewpoint - specifically that it's controlled or influenced by the Chinese Communist Party. and they want to discriminate against that viewpoint.
  id say you have a stronger argument than viewpoint discrimination by saying it violates the first ammendment of the users of tiktok, personally, though the courts might disagree.
  have you read the bill? the actual law, not news articles or summaries of it?
  I linked it in this comment. go read it, it's short, and not terrible as far as legalese goes.
  the gist of it is that the law makes it illegal to run an app store (or anything that looks like an app store) that offers downloads of the TikTok app.
  so the two big obvious targets of the law are Apple and Google...but it applies equally to everyone. F-Droid could violate it, in theory, by hosting the APK for download through their servers.
  or for example, say the ban took effect, and TikTok gets removed from app stores. some tech-savvy high school kid knows how to copy the APK from their Android phone before it gets deleted, and shows their friends how to sideload it onto their phones.
  then a bunch of other people ask for it too, so this kid uploads it to some filesharing service, passes around the link, and eventually it gets around to 100 other classmates.
  that high school kid has violated the TikTok ban. the federal government can levy a fine against them of half a million dollars ($5,000 per user who downloaded it)
  does that satisfy your desire to have the ban infringe on the free speech of "real" people, and not just Apple and Google?
  
  this is a much better response to the arguments in general, yes, good.
  
  To me the issue is tik-tok could be used to sideload data gathering for China, such as government officials camera or microphone use, beyond the worry of poisoning our society with propaganda. There have already been binary apps with malicious backdoors. Compared to a weather app that may harvest location, contacts, etc, but most likely verifiable content.
  But that's why I don't install garbage apps, run GrapheneOS and Linux to try to minimize data gleaning.
  
  tik-tok could be used to sideload data gathering for China, such as government officials camera or microphone use
  but again - nothing about that is unique to TikTok.
  do you think the federal government should force Apple and Google to ban the Twitter app, because of the risk that Elon Musk might use it to spy on politicians to get leverage for the 2026 midterms?
  or, since Musk has said he's starting to meddle in European politics as well - should the EU require Apple and Google to ban the Twitter app on European soil, out of a similar fear that the Twitter app could be used as spyware?
  beyond the worry of poisoning our society with propaganda.
  of the 3 apps that I mentioned - TikTok, Facebook, and Twitter - aren't all 3 of them "poisoning our society with propaganda"?
  why is TikTok singled out for the ban, do you think?
  does it have anything to do with the long-standing right-wing grievance and fear and distrust towards Ghyna (or the "ChiComs", if you prefer the pre-Trump right-wing nomenclature)?
  because as far as I can tell, every argument about this ends up boiling down to "sure, lots of apps do it...but it's uniquely bad when an app written by Chinese people does it"
  
  The fear is because China is known to be a spy advesary, where as google and apple (operating from the USA) would really not need to spy on it's own government. It is really no different than the Russian maintainers being kicked off the Linux kernel dev team as a security measure.
  
  beyond the worry of poisoning our society with propaganda
  lol it's been poisoned since a bunch of slavemasters founded it. TikTok is just a drop in the bucket.

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