About the threat to ban TikTok

[Tdarcos]

I've never been a user of TikTok, and part of it might be, even though I love music and I have interests in technology, I'm 62 years old. I'll admit, I've released a vertical (cell phone) video on YouTube, because nobody told me back then if you rotate the phone 90 degrees you get a regular landscape orientation picture.

Well anyway, I have no dog in this fight, and it will not matter to me personally if this service is banned, I see serious Constitutional issues arising with this action. TikTok is clearly a communications platform, it has the right to communicate under the First Amendment. Additionally, it would almost certainly have standing to raise the First Amendment rights of its users who, in effect, are being silenced. I am considering that I can't see what grounds they would have to prohibit private individuals from using it, or app stores from providing the means to access it. A complete ban on a means of communication is such a huge and drastic step, I can't see any court doing no less than issuing an immediate temporary restraining order blocking such a ban. The government would have to justify its action based on "strict scrutiny," a very tough standard. As far as I can tell, a judge wold find a law allowing this unconstitutional and issuing a permanent injunction against its enforcement.

To withstand a First Amendment challenge, there must be some particular type or class of communication that is in some way a problem, the means to fix that problem must be narrowly tailored and have been restricted to specific time, manner, and place requirements. First, they can't argue there is a threat to national security, nobody is passing secrets around. Byte Dance, its owner, has stated that data of US users is not kept outside the US. The government would have to show that is not the case, and then how sharing of individual's published videos with the Chinese government, presuming it did so, compromises national security. I think that argument has been precluded, since Federal employees are not permitted to install TikTok on government-issued phones.

Now, the government is probably going to try to claim banning the app or restricting their hosing does not affect First Amendment issues, but is just related to a commercial transaction. That argument is about as thin as toilet paper, and just as weak. If the government prohibited a newspaper from getting newsprint, or ink, or phone service, or a YouTube/TikTok content creator from purchasing video cameras or memory cards, yes, those are commercial transactions, but are critical in order to exercise a First Amendment protected right.

The Supreme Court rejected the completely banning of a media outlet in the case of Near v. Minnesota, 283 U.S. 697 (1931), in which a state law allowed a government official to shut down a newspaper because of the content of articles, constituted an unlawful prior restraint. There is also the financial value. If the government stops app stores from offering the product, there is also their right to contract with the publisher of the App. And the customer base that is being taken away, this may violate the Takings Clause of the Fifth Amendment. I believe that simply making their app illegal, or trying to make app stores not offer it, without notice or hearing, is also a violation of the Due Process Clause of the Fifth Amendment.

I mean, I'm not even a lawyer and I can spot at least four Constitutional violations.

Another reason is societal. If we do this sort of thing, it makes us look like the worst bunch of hypocrites, by, in effect, banning certain speech based on whether we like the company publishing it. If the US just bans TikTok, how does that make it any different from the Chinese government and its speech bans. I think the last thing we want to do is emulate the behavior of the Butchers of Beijing.

[AArdvark]

But we are, Blanche, we are hypocrites!

We fear and hate the different.

[Ice Cream Jonsey]

Paul, the decisions to ban the app TikTok, which is Chinese spyware, on American government devices has nothing to do with free speech.

[Flack]

Imagine if he DID have a dog in the fight!

[Tdarcos]

Paul, the decisions to ban the app TikTok, which is Chinese spyware,

And your evidence to prove this is? Courts deal in facts. Proof it is transmitting data unrelated to its operation and is doing so to Chinese IP addresses. I haven't really heard that argument in the news. What I do see is:

But Facebook still collects more data than TikTok. Same goes for Google, which tries to record a history of where you go and all the pages you visit in its Chrome Web browser. We did not find evidence that TikTok collects your precise location, an especially sensitive type of data that Facebook and Google do collect.

- TikTok and you: Should you delete the app now?, The Washington Post, Feb. 3.

So it is arguable that the data it collects is related to selling ads. And unless there is some effort to stop the even worse data collection practices of Google and Facebook, it can argue that it is being targeted for selective enforcement but no effort is being done to stop worse offenders. Remember, other than Video Rental Store Customer Viewing Records, there is no Federal Data Privacy Law in the US. I don't particularly like the data collection practices of some media companies or other websites, but all of this is legal.

on American government devices has nothing to do with free speech.

I did not say it does, I said:

First, they can't argue there is a threat to national security, nobody is passing secrets around. Byte Dance, its owner, has stated that data of US users is not kept outside the US. The government would have to show that is not the case, and then how sharing of individual's published videos with the Chinese government, presuming it did so, compromises national security. I think that argument has been precluded, since Federal employees are not permitted to install TikTok on government-issued phones.

I said the argument of a National Security Threat would appear to be precluded since the app is excluded from government smartphones.

[Jizaboz]

The bill being proposed (unfortunately) has nothing to do with TikTok and is much more broad in the wording. TikTok itself is NOT in any wording of the bill. It's a horrible bill meant to "prevent spreading of misinformation". Basically the same ol bullshit we've been hearing for a couple of years now. Have an opinion that could somehow be in strong disagreement with a government stance? Wehehehell you have no business sharing it!

TikTik should go away if anything because it's mental diarrhea. I have a friend who can't even wait on a god damn game of Call of Duty to load without scrolling through TikTok bullshit on his fone. Every time he tries to share something from it with me I refuse. "If it's on TikTok I ain't looking at it. Find me a YouTube link."

[AArdvark]

I think mental diarrhea is a very accurate description of the big social media platforms. I got on FB after a year and nothing has changed. Stayed long enough to post a coffe cup quote and uninstalled it again

[Flack]

Let it be known that Tdarcos only deals in facts.