The Bigger Picture: 6 Things You Might Not Know About TikTok Inc. v. Merrick Garland
On Monday, the U.S. Court of Appeals for the District of Columbia heard arguments in TikTok, Inc. v. Merrick Garland from the government and TikTok’s legal teams about the future of the tech giant in America. The case has major implications for both U.S. national security and the future of technology policy.
TikTok’s arguments were centered around the potential harms to free speech. They contend that if the U.S. government bans a specific platform, it would hinder the ability of many Americans, especially young people, to have their voices heard. TikTok’s legal team also argued that TikTok is an American entity, stating that American data is isolated from parent company ByteDance. The government dismissed these arguments, however, citing the recommendation machine’s algorithms come directly from ByteDance without TikTok intervention.
The government’s case focused on TikTok's threat to U.S. national security. TikTok’s parent company, ByteDance, is a Chinese-owned firm with ties to the Chinese Communist Party (CCP). Due to its foreign status, ByteDance is not entitled to free speech privileges, the government argues.
Content creators are also pushing against the ban, citing that the move implicated their First Amendment rights. They argued that creators would not be able to replicate their followings on other platforms, limiting their speech. The government responded that it’s not targeting the creators, only the perceived Chinese influence within the platform.
The Background:
In April, the U.S. Congress passed a law that requires ByteDance to divest from the popular social media platform. The primary concerns driving the legislation were what Congress and the intelligence community perceived to be significant national security concerns. The government argues that Americans are vulnerable to potential content manipulation and data violations, directed by the CCP, under the current setup. However, the company has pushed back against the government’s claims, arguing that they have an independent relationship with ByteDance and are taking substantial steps to isolate TikTok from foreign influence through Project Texas, a project with U.S. company Oracle that aims to wall off American data from China.
The Bigger Picture Around TikTok Inc. v. Merrick Garland:
The ban, and ensuing legal challenges and arguments that are happening now, come at a significant moment for technology reform and is a massive test of congressional powers and oversight. Here are six important insights that you might not know about the case, its background, and its potential implications.
There is No “Free” Market in China: China began to open its borders – and its markets – to the West in the aftermath of President Richard Nixon’s famous visit to China in 1972. After the death of Mao Zedong, his successor, Deng Xiaoping, opened China’s economy much further and began the economic transformation that resulted in China becoming an economic powerhouse with trade relations across the world. Hundreds of businesses have been built; a strong middle class has risen; and China has produced a new crop of wealthy entrepreneurs.
However, unlike the U.S. or other free nations, the relationship between business and the government in China is very different. The best example of this relationship is the downfall of arguably China’s most famous entrepreneur, Jack Ma. Ma is the founder and former CEO of Ant Group, which includes Alibaba, an online retailing behemoth that is close to China’s equivalent of Amazon. In fact, Ma was commonly compared to Jeff Bezos. He was powerful, frequently in the public eye, and well respected by the business community and the Chinese people. That all changed in 2020 after Ma made comments perceived as critical of the government – essentially accusing regulators and state-owned banks of holding up the public listing of one of his companies. Ma was called in for questioning by the same regulators he’d challenged. Days later, Ant Group’s $34 billion stock market listing was suspended. For months, Ma disappeared from public view. He has never returned to the prominent position he once held.
China’s National Intelligence Law Gives Government Immense Powers: Large amounts of American user data hosted on ByteDance servers pose a significant risk to privacy. The data held can expose sensitive information about American users, including phone numbers, geolocation data, and the names listed in users’ contacts. Additionally, ByteDance is headquartered in Beijing. Under the 2017 National Intelligence Law, Chinese companies are required to assist in national intelligence work, raising fears that TikTok could be forced to share user data with the Chinese government. U.S. officials worry that this could lead to surveillance, data privacy violations, and even espionage. These fears stem from the possibility that TikTok’s data or algorithms could be exploited for Chinese state interests, amplifying cybersecurity and privacy risks globally. In a 2023 court filing, a former employee of ByteDance, Yintao Yu, alleged that the CCP spied on pro-democracy protesters in Hong Kong in 2018 by using “backdoor” access to TikTok to identify and monitor the activists’ locations and communications.
If TikTok continues to operate under a Chinese parent company, there is little reason to believe the CCP wouldn’t use American user data in the same way.
TikTok could be a weapon of “mass information.” Arguably the biggest national security threat that TikTok poses to the U.S. is the potential weaponization of the platform by the CCP to alter U.S. public opinion. The data the platform collects for ad targeting and its recommendation engine could be used by the CCP to spread propaganda for political reasons. Their efforts could range from broadly trying to divide and sow discord in the U.S. to more surgical tactics. The CCP could use TikTok in a targeted way to sway Americans towards a specific pro-China position. For example, the CCP could try to persuade Americans that any U.S. intervention to protect Taiwan is bad policy, if Beijing decides to invade. This could fundamentally undermine U.S. national security by giving our greatest rival the tools to move the American public subtly towards a particular policy position that is in the interests of the Chinese Communist Party. This would be the equivalent of letting the Soviet Union buy one of the major U.S. media outlets, like CBS, during the Cold War. Americans depended on Walter Cronkite for their evening news in that era. Now that the internet, and social media, are the primary ways Americans view information, this parallel is a stark reminder of what’s at stake.
It’s possible that the CCP has already weaponized the platform to manipulate public opinion. In a recent report by the Network Contagion Research Institute, they found that the views-to-likes ratio for anti-China content on TikTok was 87% lower than pro-China content even though the content was liked nearly twice as much, demonstrating a disproportionate level of pro-CCP amplification. Additionally, a 2023 Cybersecurity for Democracy report found that during specific time periods, the average number of views per post shows notable fluctuations. For instance, views for “Pro-Israel” content surged in late October 2023, which does not align with the volume of posts, suggesting potential manipulation or preferential treatment in algorithmic amplification.
The Chinese Communist Party Has an Office within ByteDance Headquarters to Push Communist Values: The CCP has increasingly sought to integrate its influence into the private sector, a shift that began in earnest around 2018. A previous Department of Justice filing noted the implications of this connection when saying: "ByteDance Ltd. is a Chinese firm of particular concern for the U.S. Government. ByteDance is headquartered in Beijing, subject to PRC intelligence laws, and contains an internal corporate CCP committee through which the CCP exercises influence at the company." It’s common for the Chinese government to insert “Party Cells” within private businesses. This has accelerated under the leadership of President Xi Jinping and these cells are now meant to play a role in corporate governance and ensure private companies are advancing Communist values and priorities. ByteDance is no different.
Furthermore, in 2023 Yintao Yu, a former ByteDance executive, alleged that a special committee of CCP members at ByteDance had access to a "superuser" or "god" credential, which allowed them to view all data collected by the company, including that of U.S. users. Yu asserts that this credential acted as a "backdoor" to bypass any protective measures ByteDance had in place against CCP surveillance.
Free Speech Arguments Fall Flat: During this week’s arguments, TikTok's free speech arguments didn’t appear to resonate with the judges overseeing the case. The app’s lawyers contended that banning TikTok would infringe upon the First Amendment rights of its 170 million American users, emphasizing the app’s role in free expression. However, the court was skeptical, primarily due to the national security implications tied to TikTok’s Chinese ownership. During the oral arguments, Judge Neomi Rao asserted, "It's a very, very strange framework. I know Congress doesn't legislate all the time, but here they did. They actually passed a law, and many of your arguments want us to treat them like they're an agency." Furthermore, both the judges and the government pushed back on the creators’ claims that the legislation was an implication of their First Amendment rights.
The U.S. isn’t the first country to ban TikTok: In 2020, India, one of China’s biggest geopolitical rivals, banned the popular platform, as well as dozens of other Chinese apps. The Indian government argued that TikTok, and other apps, posed a threat to India’s national security because of concerns about data privacy. Contrary to the arguments of TikTok and the content creators, after India banned TikTok, users didn’t lose their voice or ability to share their content. In fact, they primarily migrated to YouTube and Instagram.