Rep. Jamaal Bowman (D-N.Y.) is almost the only congressman thus far to support TikTok, the widely popular social-media app. He is absolutely right to do so. TikTok is being attacked in Congress as being a national security threat; the expressed worry is that all information TikTok finds on U.S. residents will be made available to the Chinese government to spy on us.
The proposals floated thus far to deal with threats posed by TikTok to national security — namely, a forced sale or total shut down of TikTok — are clearly unconstitutional.
The U.S. government cannot shut down TikTok legally. That would be the same as having stopped The New York Times from publishing the “Pentagon Papers.” In order for a shutdown to be legal, it has to meet the rule of the Pentagon Papers case: The government must show damage to the national security is “direct, immediate, and irreparable … to the Nation or its people.”
Thus far the government has shown no such damage from TikTok.
It is asserted that because TikTok is owned by a Chinese company, the Chinese government could gain control of information gathered by TikTok about private individuals. This is a perfectly legitimate concern — but the government has no proof that it has ever taken place and can only speculate that it will take place.
A better approach might be achieved with legislation covering ownership provisions as to foreign-owned websites which keep the ownership in the hands of Chinese but with working control in a group (including Chinese) acceptable to the government. The Federal Communications Commission has used comparable provisions.
The congressional committee looking into TikTok has not acknowledged First Amendment concerns, even though these concerns were brought to its attention in an excellent statement delivered to it on March 23 by 16 First Amendment groups, including PEN America, the Knight First Amendment Institute at Columbia University, and the Author’s Guild. This statement focused on the right of viewers to watch TikTok under the First Amendment. Perhaps more relevant would be TikTok’s loss of its right to speak as guaranteed by the Pentagon Papers case, as noted above.
As Rep. Bowman points out, the risks associated with TikTok exist with all social media. His solution is massive legislation to restructure all of social media; he would start with giving users greater control over their own information.
His preferred approach, with respect to information collected by social media companies, is to give users the ability to opt out from the data-collection process and the consequent use of personal information without the knowledge of the individual involved.
A proposal to give users the right to opt out of data collection was frequently made when the internet began more than 20 years ago. It was uniformly rejected at that time because it was thought to be a fatal obstruction to the growth of the internet. There was some truth to this observation then, but the internet since has grown enormously prosperous. Opting out is a partial solution to the “Chinese problem” because it does not solve security problems as to the disposition of information if a user were to opt in and a social media company such as TikTok gains control of the user’s information. But it’s a start.
Rep. Bowman also wants a congressional look at the monopoly position which Facebook and Google currently have. He says the consequence of this monopoly position is that local journalism has been destroyed because most advertising goes to the internet and not to local sources.
There is no question Rep. Bowman’s analysis is correct. Generally speaking, profitable local newspapers are few and far between today.
Supreme Court Justice Clarence Thomas not so long ago, in a court opinion, said the issue of the monopoly profits on the internet should be studied. At the very least, Bowman’s point is that there should be a conversation about these issues in place of “fear-mongering” and “scapegoating” TikTok for whatever reason, including the fact that TikTok for some age groups is considered better than any of its competitors.
Rep. Bowman did not mention the difficulties caused by Section 230 of the federal Communications Decency Act, which gives internet companies freedom from liability with respect to what they publish of material which is submitted to them. A few weeks ago, the Supreme Court wrestled with the question of whether this section applies to algorithms, and the criticism of this section — designed to give internet companies a financial boost in their infancy — is far and wide. This provision gives social media companies an advantage over print companies, which are not exempt from liability for material created by others which they publish, and it enables the acquisition by social media companies of monopoly power. This provision deserves immediate congressional attention.
Rep. Bowman is absolutely correct in turning the attention from bashing TikTok to examining the totality of social media. Beating up on TikTok does not solve the problems of the internet.
James C. Goodale is the former general counsel and vice chairman of The New York Times and the author of “Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles.”