TikTok ban goes to the court: 5 essential reads on the case and its consequences

TikTok headed to court on Sept. 16, 2024^[1], in a bid to overturn a law that would force the video app to divorce from its China-based parent company or be banned in the U.S.

During the appearance before a panel of judges at the U.S. Court of Appeals for the District of Columbia Circuit, layers for TikTok said imposing such a prohibition would have “staggering^[2]” consequences for free speech.

The court hearing is the latest development in a lengthy saga over the fate of an app that is widely popular, especially among young Americans, but that many politicians in Washington fear poses or is a security risk.

Whatever the outcome of the oral arguments presented by lawyers from the U.S. government on one side and TikTok and parent company ByteDance on the other, it’s unlikely to be the end of the story. Many analysts expect the case will head to the Supreme Court.

But why is TikTok controversial? Are the claims of it being a national security risk valid? And what will the case mean for free speech? The Conversation’s contributors have been on hand to answer these and other questions.

1. An agent of the Chinese state?

Politicians who want to ban TikTok, or at least sever its links to China, fear that the app provides a way for the Chinese Communist Party to influence Americans or use their data for malicious purposes. But how much influence does the Chinese government have at TikTok? That question is addressed by Shaomin Li^[4], a scholar of China’s political economy and business at Old Dominion University.

Li explains that the relationship between TikTok, ByteDance and the Chinese Communist Party is nuanced^[5] – it isn’t simply a matter of officials in Beijing telling ByteDance to jump and the parent company dictating how high its subsidiary will leap. Rather, as with all companies in China, employees are under certain obligations when it comes to advancing national interests. In China, private enterprises, such as ByteDance, operate as joint ventures with the state.

“Regardless of whether ByteDance has formal ties with the party, there will be the tacit understanding that the management is working for two bosses: the investors of the company and, more importantly, their political overseers that represent the party,” Li writes. “But most importantly, when the interests of the two bosses conflict, the party trumps.”

Read more: Is TikTok's parent company an agent of the Chinese state? In China Inc., it's a little more complicated^[6]

2. Exploiting user data

The risks TikTok poses to U.S. users are similar to the risks posed by many popular apps, principally that the app collects data about you. That data, which includes contact information and website tracking, plus all data you post and messages you send through the app, is available to use or misuse by ByteDance and any other entity that has or gains access to it.

Iowa State University cybersecurity researcher Doug Jacobson^[7] writes that U.S. officials and lawmakers are concerned that the Chinese government could exploit TikTok user data^[8] to spy on U.S. citizens. Government hackers could use the TikTok data to trick users into revealing more personal information.

But if the goal is to counter Chinese hackers, banning TikTok might prove too little, too late. “By some estimates, the Chinese government has already collected personal information on at least 80% of the U.S. population via various means,” Jacobson writes. “The Chinese government – along with anyone else with money – also has access to the large market for personal data.”

Read more: Should governments ban TikTok? Can they? A cybersecurity expert explains the risks the app poses and the challenges to blocking it^[9]

3. The security risks of a ban

Banning TikTok could also make U.S. users more vulnerable to hackers of all stripes. Rochester Institute of Technology computer security expert Robert Olson^[10] writes that many of the more than 100 million U.S. TikTok users could try to get around a ban on the app, with negative consequences for their digital safety^[11].

If TikTok ends up banned from Apple’s and Google’s app stores, users could try to access the app elsewhere via sideloading. This practice of getting around Apple and Google app stores leaves users vulnerable to malware posing as the TikTok app. TikTok users might also be motivated to circumvent Apple and Google security controls in order to keep the app installed, a move that would make users’ phones more vulnerable.

“I find it unlikely that a TikTok ban would be technologically enforceable,” Olson writes. “This … legislation – aimed at improving cybersecurity – could motivate users to engage in riskier digital behavior.”

Read more: Banning TikTok could weaken personal cybersecurity^[12]

4. First Amendment concerns

In its legal challenge to the U.S. government, ByteDance claims the government is violating its First Amendment rights. Technology law scholars Anupam Chander^[13] of Georgetown University and Gautam Hans^[14] of Cornell University write that ByteDance has grounds for its claim^[15], and that the implications go beyond this case.

TikTok is a publisher, an online publisher of users’ videos. Forcing ByteDance to divest TikTok is a form of prior restraint – the government preventing speech before it occurs.

“By forcing the sale of TikTok to an entity without ties to the Chinese Communist Party, Congress’ intent with the law is to change the nature of the platform,” they write. “That kind of government action implicates the core concerns that the First Amendment was designed to protect against: government interference in the speech of private parties.”

Read more: TikTok law threatening a ban if the app isn't sold raises First Amendment concerns^[16]

5. What about the others?

Security and legal issues aside, the forced sale to a U.S.-based company or ban of TikTok in the United States is a questionable approach to solving the problems^[17] the law aims to address: potential Chinese government influence in the U.S., harm to teens, and data privacy violations, writes Arizona State media scholar Sarah Florini^[18].

The Chinese government – and other U.S. adversaries – has long used social media apps owned by U.S. companies to attempt to influence American public opinion. TikTok is hardly alone in posing harm to teens, as the Facebook whistleblower case amply demonstrated^[19]. And vast amounts of Americans’ personal data are already available to any buyer on the open and black markets.

“Concerns about TikTok are not unfounded, but they are also not unique. Each threat posed by TikTok has also been posed by U.S.-based social media for over a decade,” Florini writes.

Read more: Banning TikTok won't solve social media's foreign influence, teen harm and data privacy problems^[20]

References

1. ^{^} headed to court on Sept. 16, 2024 (www.cnn.com)
2. ^{^} prohibition would have “staggering (www.ft.com)
3. ^{^} Andrew Harnik/Getty Images (www.gettyimages.com)
4. ^{^} Shaomin Li (theconversation.com)
5. ^{^} relationship between TikTok, ByteDance and the Chinese Communist Party is nuanced (theconversation.com)
6. ^{^} Is TikTok's parent company an agent of the Chinese state? In China Inc., it's a little more complicated (theconversation.com)
7. ^{^} Doug Jacobson (theconversation.com)
8. ^{^} the Chinese government could exploit TikTok user data (theconversation.com)
9. ^{^} Should governments ban TikTok? Can they? A cybersecurity expert explains the risks the app poses and the challenges to blocking it (theconversation.com)
10. ^{^} Robert Olson (theconversation.com)
11. ^{^} negative consequences for their digital safety (theconversation.com)
12. ^{^} Banning TikTok could weaken personal cybersecurity (theconversation.com)
13. ^{^} Anupam Chander (theconversation.com)
14. ^{^} Gautam Hans (theconversation.com)
15. ^{^} ByteDance has grounds for its claim (theconversation.com)
16. ^{^} TikTok law threatening a ban if the app isn't sold raises First Amendment concerns (theconversation.com)
17. ^{^} questionable approach to solving the problems (theconversation.com)
18. ^{^} Sarah Florini (theconversation.com)
19. ^{^} Facebook whistleblower case amply demonstrated (theconversation.com)
20. ^{^} Banning TikTok won't solve social media's foreign influence, teen harm and data privacy problems (theconversation.com)