Congress Should Give Up on Unconstitutional TikTok Bans

Congress’ unfounded plan to ban TikTok under the guise of protecting our data is back, this time in the form of a new bill—the “Protecting Americans from Foreign Adversary Controlled Applications Act,” H.R. 7521 — which has gained a dangerous amount of momentum in Congress. This bipartisan legislation was introduced in the House just a week ago and is expected to be sent to the Senate after a vote later this week.

A year ago, supporters of digital rights across the country successfully stopped the federal RESTRICT Act, commonly known as the “TikTok Ban” bill (it was that and a whole lot more). And now we must do the same with this bill. 

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TELL CONGRESS: DON’T BAN TIKTOK

As a first step, H.R. 7521 would force TikTok to find a new owner that is not based in a foreign adversarial country within the next 180 days or be banned until it does so. It would also give the President the power to designate other applications under the control of a country considered adversarial to the U.S. to be a national security threat. If deemed a national security threat, the application would be banned from app stores and web hosting services unless it cuts all ties with the foreign adversarial country within 180 days. The bill would criminalize the distribution of the application through app stores or other web services, as well as the maintenance of such an app by the company. Ultimately, the result of the bill would either be a nationwide ban on the TikTok, or a forced sale of the application to a different company.

The only solution to this pervasive ecosystem is prohibiting the collection of our data in the first place.

Make no mistake—though this law starts with TikTok specifically, it could have an impact elsewhere. Tencent’s WeChat app is one of the world’s largest standalone messenger platforms, with over a billion users, and is a key vehicle for the Chinese diaspora generally. It would likely also be a target. 

The bill’s sponsors have argued that the amount of private data available to and collected by the companies behind these applications — and in theory, shared with a foreign government — makes them a national security threat. But like the RESTRICT Act, this bill won’t stop this data sharing, and will instead reduce our rights online. User data will still be collected by numerous platforms—possibly even TikTok after a forced sale—and it will still be sold to data brokers who can then sell it elsewhere, just as they do now. 

The only solution to this pervasive ecosystem is prohibiting the collection of our data in the first place. Ultimately, foreign adversaries will still be able to obtain our data from social media companies unless those companies are forbidden from collecting, retaining, and selling it, full stop. And to be clear, under our current data privacy laws, there are many domestic adversaries engaged in manipulative and invasive data collection as well. That’s why EFF supports such consumer data privacy legislation. 

Congress has also argued that this bill is necessary to tackle the anti-American propaganda that young people are seeing due to TikTok’s algorithm. Both this justification and the national security justification raise serious First Amendment concerns, and last week EFF, the ACLU, CDT, and Fight for the Future wrote to the House Energy and Commerce Committee urging them to oppose this bill due to its First Amendment violations—specifically for those across the country who rely on TikTok for information, advocacy, entertainment, and communication. The US has rightfully condemned other countries when they have banned, or sought a ban, on specific social media platforms.

Montana’s ban was as unprecedented as it was unconstitutional

And it’s not just civil society saying this. Late last year, the courts blocked Montana’s TikTok ban, SB 419, from going into effect on January 1, 2024, ruling that the law violated users’ First Amendment rights to speak and to access information online, and the company’s First Amendment rights to select and curate users’ content. EFF and the ACLU had filed a friend-of-the-court brief in support of a challenge to the law brought by TikTok and a group of the app’s users who live in Montana. 

Our brief argued that Montana’s ban was as unprecedented as it was unconstitutional, and we are pleased that the district court upheld our free speech rights and blocked the law from going into effect. As with that state ban, the US government cannot show that a federal ban is narrowly tailored, and thus cannot use the threat of unlawful censorship as a cudgel to coerce a business to sell its property. 

TAKE ACTION

TELL CONGRESS: DON’T BAN TIKTOK

Instead of passing this overreaching and misguided bill, Congress should prevent any company—regardless of where it is based—from collecting massive amounts of our detailed personal data, which is then made available to data brokers, U.S. government agencies, and even foreign adversaries, China included. We shouldn’t waste time arguing over a law that will get thrown out for silencing the speech of millions of Americans. Instead, Congress should solve the real problem of out-of-control privacy invasions by enacting comprehensive consumer data privacy legislation.