“An enormous threat.” “An unacceptable national security risk.” “A spy balloon in your phone.” These are descriptions—from members of Congress and American regulators—not of a hidden piece of malware or a computer virus, but of the Chinese social-media app TikTok. Most U.S. citizens know TikTok as the place where they can watch people do stupid dances or post clips of themselves cooking. But many government officials view the app as a Trojan horse, a device that will enable the Chinese Communist Party to insinuate itself into American life and subvert national security. And that has led civil servants and elected representatives to call on the U.S. government to cut off Americans’ access to TikTok, the app’s enormous popularity with them notwithstanding.
The efforts to ban TikTok go back to the summer of 2020, when President Donald Trump, citing his powers under the International Emergency Economic Powers Act, issued an executive order prohibiting any American from participating in any transaction with the app. That order was struck down in the courts. But the impulse behind it hasn’t gone away. In January, Republican Senator Josh Hawley introduced a bill to ban TikTok from the U.S., and last month, Democrat Mark Warner and Republican John Thune introduced another Senate bill, the RESTRICT Act, which would empower the president to impose tight restrictions on “technology from foreign adversaries”—very much including TikTok.
What has the video-sharing platform done to merit this treatment? Well, the concern is not so much what it’s done as what it might do—or, perhaps more accurately, what the Chinese government might make it do. The company’s critics accuse it of collecting hoards of private information about its users, including data not only from within the app but from other apps as well. This information might, in theory, involve compromising material that could be used to blackmail U.S. citizens. The critics also point to the possibility of the Chinese government’s using the site as a propaganda outlet, swaying opinions by feeding American viewers certain clips.
In fact, little if any evidence suggests that TikTok’s data-collection practices are meaningfully different from—or any more invasive than—those of other social-media companies. To the extent that those practices are problematic invasions of privacy, the logical remedy would surely be to impose industry-wide standards. But for TikTok’s critics, those similarities pale next to the key difference between TikTok and its competitors: It’s a Chinese company—which means it could be legally required to hand over data to the Chinese government. TikTok insists that it has moved all of its American-user data to U.S. servers, but no one seems to believe that this would really make a difference if Beijing applied serious pressure to TikTok’s parent company. And so national security, we’re told, demands that TikTok be shut down in the U.S.
If TikTok were just a technology company, banning U.S. customers from doing business with it would be well within the government’s powers, as well as in line with similar actions the government has taken in the past. But TikTok isn’t just, or even primarily, a technology company. It’s a media platform, so banning it would be far more consequential. Cutting off Americans’ access to one of their favorite sources of information and entertainment would be legally and constitutionally dubious. Worse still, it would be wrong on the merits.
Any TikTok ban would have to contend with the Berman amendments, a series of changes to the International Emergency Economic Powers Act that prohibit the president from using sanctions to restrict the exchange of “information or informational materials,” including via electronic media. And then there are First Amendment considerations. As a foreign-owned company, TikTok does not itself enjoy that constitutional protection, but the U.S. Supreme Court has long held that the First Amendment protects the right of Americans to “receive and consider” information and ideas, no matter their source. In 1965, for instance, the Court struck down a federal law that imposed controls on “Communist political propaganda” that was “printed or otherwise prepared in a foreign country,” declaring unconstitutional the government’s attempt to “control the flow of ideas to the public.”
On top of this, a TikTok ban would be more problematic than limiting the flow of communist propaganda from abroad, because most of the content Americans consume on TikTok is generated by, yes, other Americans. Even if you think it should be permissible for the government to prevent Americans from reading, say, The Pyongyang Times, domestic measures blocking access to Bernie Sanders clips or a video of a guy skateboarding to Fleetwood Mac would be a remarkably far-reaching intrusion into Americans’ lives. Although content creators could migrate to other platforms, and users would find ways to circumvent the ban, such government action would radically curtail Americans’ right to receive and consider information and ideas.
Congress has the power, of course, to adjust the Berman amendments to allow itself to shut TikTok down within the United States. And the Supreme Court could decide that a TikTok ban is justified on national-security grounds. The real issue, though, is not whether the government can shut down TikTok; it’s whether it should. The national-security concerns may be legitimate, but even given the government’s compelling interest in limiting the Chinese government’s access to Americans’ data, any regulations it puts in place should be narrowly tailored to achieve that goal alone. Preventing Americans from using TikTok entirely is the opposite of that—and doing so would put the government in the position of deciding what content Americans are allowed access to and what they’re not.
I grant that the Chinese government puts itself in exactly that position all the time. YouTube, Twitter, and Facebook are all banned inside the country. Internet search terms are censored. Text messages are monitored. Even TikTok doesn’t operate inside China. But what Beijing does is hardly an argument in favor of our banning TikTok, because emulating authoritarian censorship plays to China’s strengths, not our own.
Passing comprehensive user-privacy legislation on all social-media companies operating in the U.S. would be a good idea. Shutting down one of Americans’ favorite apps is not. We don’t need to become more like China. And we don’t need to become less like America.