Today the U.S. Supreme Court issued a unanimous ruling upholding the TikTok ban. The Justices clearly did not understand the full implications of this decision, and admitted as much in the opening paragraphs of the decision:  

“…we are conscious that the cases before us involve new technologies with transformative capabilities. This challenging new context counsels caution on our part. As Justice Frankfurter advised 80 years ago in considering the application of established legal rules to the “totally new problems” raised by the airplane and radio, we should take care not to “embarrass the future.”  

The Court was not cautious enough. For reasons that they did not articulate, they refused TikTok’s request for a temporary injunction that would have given them more time to consider the issue, and they did not remand the case back to the appellate court for more fact-finding, as they could have. 

Damage Control by Gorsuch 

There is some good news in this decision. In a concurring opinion, Justice Gorsuch, clearly disturbed by and not fully sold on the law, wrote words that salvaged some semblance of First Amendment protection for Americans participating in global digital media: 

…the Court rightly refrains from endorsing the government’s asserted interest in preventing “the covert manipulation of content” as a justification for the law before us. One man’s “covert content manipulation” is another’s “editorial discretion.” Journalists, publishers, and speakers of all kinds routinely make less-than-transparent judgments about what stories to tell and how to tell them. Without question, the First Amendment has much to say about the right to make those choices. It makes no difference that Americans (like TikTok Inc. and many of its users) may wish to make decisions about what they say in concert with a foreign adversary. “Those who won our independence” knew the vital importance of the “freedom to think as you will and to speak as you think,” as well as the dangers that come with repressing the free flow of ideas. 

Justice Gorsuch’s ringing defense of the individual’s right to control their information sources is a big relief, particularly because the full decision itself was not so explicit about how First Amendment protection applied in this case.  

In a much weaker concurring opinion, Justice Sotomayer also noted that “the Act implicates content creators’ “right to associate” with their preferred publisher “for the purpose of speaking,” citing Rumsfeld v. Forum for Academic and Institutional Rights, Inc. But still, this putatively liberal justice upheld the final decision, which abrogates that very right. 

Digital Data, Global Media and National Security 

In the end, PAFACAA survived the constitutional challenge because of the data-espionage argument. The court’s argument that the law was “content neutral and …justified by a content-neutral rationale” could only be upheld by concluding that the law’s only goal was to prevent China’s government from collecting data about American users. Ignoring the fact that “Chinese propaganda” and content manipulation occupied center stage in the legislative drama, the court said, “The record before us adequately supports the conclusion that Congress would have passed the challenged provisions based on the data collection justification alone.” 

And here the Justices have “embarrassed the future.”  They did not seem to understand that extensive data exchanges and digital user identification are inherent in any interactive digital service, and that the digital ecosystem is thoroughly globalized. They did not know how to assess whether the alleged state interest in preventing that data exposure justified the free expression limitations. They lacked the technical knowledge to question the government’s case that such exchanges pose a national security risk as opposed to individual privacy risks that users can avoid or willingly accept or can be addressed through legislation that applies uniformly to all platforms. They performed no critical assessment of how such data could actually be used by a foreign adversary government to pose a real national security threat, but simply relied on the government’s unsupported assertions that it could be used to “build dossiers…for blackmail, conduct corporate espionage, or advance intelligence operations.” (Do U.S. corporations put their intellectual property on Tiktok videos? Aren’t embarrassing videos that could be used for blackmail already in public? Does the CIA host live sessions when they are planning operations?) They also did not have the knowledge to question the government’s assertions that China’s government has or could have upon request untrammeled access to the torrent of user behavior data generated by the app. They had no understanding of how the risk principle underpinning their decision can affect American platforms’ ability to operate in other countries.  

The Court simply did not know enough about what they were doing.  

Considering the Data-as-Espionage Argument 

This new, nationalistic approach to digital data exchanges needs to be examined and challenged. Begin with some uncontested facts. TikTok does not collect any more data than any other social media platform and, as noted above, extensive data exchanges and digital user identification are inherent in any interactive digital service. TikTok’s ownership is well known. Like hundreds of other multinational businesses, it started in one country (China) and extended its operations globally, with its global operations headquartered outside of PRC jurisdiction in Singapore and a substantial management and investment from Americans. No individual or corporate user of the service is unaware of ByteDance’s Chinese origins. Since the campaign against it waged by America’s national security agencies began in 2019, everyone has become aware of the broad outlines of the Chinese government’s relationship to ByteDance.  

Nevertheless, millions of these users – including the President of the United States (Biden) and both candidates in the 2024 election – all chose to register in and use the TikTok platform. Apparently, they did not feel that either data collection or the vague prospect of state-sponsored hacking posed an unacceptable risk to them.  

Yet the U.S. government has now successfully asserted a power to interfere with the right of people in this country to make that choice. It’s important to understand that the government has asserted that power regardless of whether the Americans involved are working for the government, or are in positions relevant to the military, intelligence or national security. Indeed, the FBI has never presented a plausible scenario in which this data poses risks that threaten the entire nation. Instead, we have a broad claim that aggregate data about Americans behavior on a platform is inherently a threat to the stability and security of the state if it comes into the hands of a foreign adversary.  

Now that the Supreme court has accepted that bizarre, disproportionate claim, we need to examine its implications – not just for Americans’ right to free speech, but for their right to access or use any online service: payment systems, e-commerce platforms, productivity applications, search engines, streaming media, web sites, whatever. Because they all generate data in large aggregations that could, in principle, be used to know more about Americans.  

Laws and regulations protecting individuals from intrusive and unauthorized surveillance of their digital records by government, business and other individuals are acceptable. This involves the protection of an individual right. But this is not the same as, and should not be confused with, a claim by a national government that it has the right to control the online activities of its entire population because the aggregate information those actions reveal about the country as a whole might be useful to a foreign adversary. 

Revealingly, it is Communist China that has consistently asserted such a right. In the late 1990s, out of the way Beijing neighborhoods had signs warning the residents not to communicate with foreign market researchers. The image on the poster portrayed market researchers as malevolent monsters. Data collection, even for commercial purposes, was dangerous. Well, perhaps it is, for a nationalist dictatorship. A free society is an open society; its restrictions are confined to sensitive secrets and do not embrace anything and everything people do out of a paranoid fear that external forces can topple the government. 

Ironic Resistance 

Data exposure thus does not justify a ban. In an ironic and highly appropriate assertion of their rights, many TikTok users are preparing for the ban by establishing accounts on XiaoHongShu, an alternative social media app populated almost entirely by Chinese citizens. Its name is commonly translated into English as “RedNote,” but it really means “Little Red Book,” an ironic reference to the collection of Mao’s aphorisms that became the bible of the violent gangs of leftwing Communists during China’s “Cultural Revolution.” Unlike TikTok, this app is based entirely in China. Unlike TikTok, it is fully subject to Chinese censorship. Compared to TikTok, the risks of Chinese government data access would be much higher. So why is this happening?  

It is a deliberate act of defiance. It tells the U.S. government, we can decide for ourselves what risks to take in our adoption of apps. It tells them that the data about ourselves that we share with service providers should be under our control, not yours.  

This resistance move has important implications, aside from its protest value. Little Red Book has become one of the most downloaded apps in the United States. As it increases its U.S. user base, all of the arguments for a TikTok ban apply to the new app – even more so. So the migration to Little Red Book makes it clear just what a slippery slope the Justice Department and our intelligence agencies are on. Will the government declare this new app a “foreign adversary-controlled application” and seek to ban it? If it does, what is next? Temu? The same data argument applies. Should we ban Americans from using mobile phone networks when they are in China? What about the website of the People’s Daily? Anyone visiting that site and establishing an account reveals lots of information about themselves: their IP address, which can be translated into location, the fingerprint of their browser and device, an email address, and more. The ban and the reaction put us on a slippery slope toward our own version of the Chinese firewall.  

De-Globalizing 

One of the most transformative things about what the court called “new technologies with transformative capabilities” is their global scope. The Internet, and the virtual world it creates make it possible for users anywhere in the world to be connected, and for software applications and online services to be accessible everywhere. While this naturally creates cybersecurity vulnerabilities, it also creates a globalized space for e-commerce and social communication that has had, and continues to have, enormous economic and social benefits. We can address the cybersecurity vulnerabilities and retain the globalization with tools and policies at the organization level, through stronger technical standards, through better technologies. The PAFACAA on the other hand would take us backwards to an early 20th century world of telephone and telegraph and broadcasting monopolies and bordered communications. 

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