US faces legal hurdles in potential TikTok ban

TikTok's future has become cloudier after its CEO Shou Zi Chew's testimony before the US Congress, but experts and digital rights advocates said banning the app won't solve the purported issues, and the government faces hurdles to impose a ban.

The popular social media app now has 150 million monthly active users in the US, almost half the nation's population. It has been under increased scrutiny over "national security" issues because its parent company ByteDance Ltd is based in Beijing.

Chew said repeatedly on Thursday at the hearing in Washington that TikTok is a global company, headquartered in Los Angeles and Singapore, and that ByteDance is a private company, but numerous members of Congress said they don't believe him.

US lawmakers wanted to use the hearing to show Americans that the app poses a national security threat and only a ban can address it. But they failed to provide evidence to back up their allegation that US users' data has been or could be shared with the Chinese government.

Many lawmakers focused their questions on data collection and promotion of potentially harmful content to children, but industry experts said those issues aren't unique to TikTok but common across all social media platforms.

A widely reported scandal involved Facebook and Cambridge Analytica, a British political research company. The company harvested the data of tens of millions of Facebook's US users without their consent to aid 2016 Republican campaigns, including former president Donald Trump's.

The politicians' efforts to isolate TikTok from its competitors, some of them having records of abusing private data, are rooted in "anti-China" motives and don't address the privacy issues, said civil rights and digital rights groups.

"If you think the US needs a TikTok ban and not a comprehensive privacy law regulating data brokers, you don't care about privacy, you just hate that a Chinese company has built a dominant social media platform," Eva Galperin, director of cybersecurity at the San Francisco-based Electronic Frontier Foundation, said in a tweet in response to the hearing.

The advocates urge the government to protect Americans' privacy more effectively by enacting a comprehensive privacy law not by categorically banning a communications platform used by millions of people.

They accuse the US leaders of missing the opportunities of actually passing legislation to regulate those companies.

A few members of Congress acknowledged that at the hearing. Florida Democratic Representative Darren Soto said that more regulation of social media companies is necessary.

"The solution, as I see it, is to regulate social media, TikTok and others. The first key is privacy. It eluded us in the last Congress," Soto said, referring to the Congress' failure to pass the "American Data and Privacy Protection Act" last year.

The US government has already barred TikTok on government devices, and the administration of President Joe Biden has threatened a total ban.

But the idea of a national ban still faces huge hurdles legally.

"The First Amendment would require the government to carry a heavy burden of justification," said Jameel Jaffer, a lawyer and the executive director of the Knight First Amendment Institute at Columbia University, in an opinion article for The New York Times.

The Trump administration tried to ban Chinese messaging app WeChat in the US, but a federal court blocked Trump's attempt two years ago because the government's action of banning Americans from using a foreign communications platform would violate the First Amendment.

Previous attempts to ban TikTok under the Trump administration also were blocked in court due in part to free speech concerns.

A coalition of civil rights groups, including Fight for the Future, the Center for Democracy and Technology, and the American Civil Liberties Union, released a joint letter on Wednesday opposing a ban on TikTok.

"A nationwide ban on TikTok would have serious ramifications for free expression in the digital sphere, infringing on Americans' First Amendment rights and setting a potent and worrying precedent in a time of increased censorship of internet users around the world," the letter said.

"The Supreme Court has long recognized that the First Amendment encompasses the right to receive information, irrespective of its source, free from government interference.

"If the government were to intervene to ban TikTok entirely, it would impair the rights of citizens to communicate in a manner of their choosing, giving rise to significant First Amendment concerns."

The groups are also worried that, because most of the TikTok users are young people, summarily shutting down a popular social media app will raise serious questions in the minds of a rising generation about the sanctity of free speech in the US system of governance.