"Entirely performative" —
Experts discussed the legal impossibility of a nationwide TikTok ban.
Ars Frontiers kicked off Monday with a panel called "TikTok—Banned or Not, It's Probably Here to Stay," featuring experts on TikTok, data privacy, and cybersecurity.
It just so happened that the week before Ars Frontiers, TikTok was banned in Montana. This made the panel discussion particularly timely, as some TikTok creators and TikTok promptly sued the state, hoping to ensure that all Americans maintain access to the China-owned app—despite lawmakers' national security concerns that the Chinese Communist Party (CCP) might use TikTok to access US user data.
An associate professor in the communication media and learning technologies design program at Teachers College, Columbia University, Ioana Literat monitors how young people use social media. She has been researching TikTok since it first became available in the US. Banning TikTok at the "apex of its popularity," Literat said, would set "a huge cultural and political precedent" for TikTok's young user base, which is so politically active on the app.
"The government hasn't really shown a compelling justification for the ban," Literat said. "If you're going to restrict freedom of speech in this way, you really need to make a very clear and potent case for the need for the ban" and really prove that "there's no better alternatives to this ban."
Beyond rationales for a ban not being compelling, legal director at the Electronic Frontier Foundation Corynne McSherry said that state and federal pushes to ban TikTok were "entirely performative and a complete waste of time." Her organization advocates for more comprehensive data privacy laws, rather than a TikTok ban.
Discussing the various First Amendment concerns that banning TikTok would cause, she agreed with Literat that "the government really hasn't made much of an effort to get beyond rhetoric in terms of what we should really be worried about."
"Perhaps you can hear in my voice, I'm a little frustrated about this," McSherry said. "If we actually care about data privacy, which I think we should—I think that's really important—what we really need is comprehensive federal legislation that doesn't just target one particular app, but actually really protects all of us by targeting all of the different ways in which companies are surveilling us all the time."
Bryan Cunningham, a former White House lawyer and CPRI executive director at UCI Cybersecurity Policy & Research Institute, predicted that "Congress and the president will try to ban TikTok," and "it'll be a complete failure," partly because "it's not enforceable."
"I don't know how you think you're gonna get the app off of tens of millions" of people's phones, Cunningham said. "Are we gonna have border checkpoints where they look at your phone and see if the app is on there?" He said his young daughters would drive to Canada to put TikTok on their phones if they had to, and McSherry pointed out that many users would simply use a VPN service to access the app and skirt the ban.
Cunningham said that in his view, concerns about the CCP using TikTok to spy on Americans were "very real," but "there's better ways to address them" than a ban. He agreed with McSherry that better data privacy laws would help to limit surveillance.
And TikTokers might even be totally onboard with going that route, Literat said. Her research shows that while young people using TikTok don't seem to take the threat of a ban seriously—and joked relentlessly about non-tech-savvy Congress members grilling TikTok CEO Shou Zi Chew—they are genuinely concerned about data privacy on social media.
McSherry said that in the past two years, she's seen lawmakers get more serious about passing data privacy laws that would be "a non-performative way to actually help the citizenry" avoid tech company surveillance.
From the national security standpoint, Cunningham said that the threat goes beyond data privacy, though, and also raises concerns about the CCP manipulating TikTok's algorithm to sow disinformation, restrict content, or push propaganda. To solve that problem, he recommended what he called a little-discussed alternative to the ban: imposing economic sanctions on TikTok owner ByteDance.
"Congress could give the president the authority, if he doesn't have it, to impose economic sanctions on ByteDance," Cunningham said.
Ars Frontiers is all about innovation, and both McSherry and Cunningham pointed out that new apps could emerge to replace TikTok at any point. This is one reason why focusing policy on one app seems extremely short-sighted. But for approximately 150 million Americans on TikTok today, Literat suggested that, at least for now, TikTok appears irreplaceable.
TikTok "has cemented this role in our cultural imagination," Literat said. "And it does have that role in young people's lives, and I think it's gonna be really hard for a platform to just supplant that. That takes time. And, of course, users care about where their friends are, where their peers are, and right now, they are on TikTok. So it would have to be a pretty mass migration, and I don't see that happening yet to other platforms."