Banning TikTok Is Unconstitutional. The Supreme Court Must Step In

I think the easier framework is this: China has banned her citizens from using most United States-based social networks. This prevents American companies from accruing profit from Chinese citizens and advertisers, and shrinks their potential pool of user data for refining algorithms or selling. As such, it's effectively a trade policy for us to in turn ban her social networks. Unless and until we are equally able to harvest Chinese data and suck yen out of China, she will not be allowed to harvest American data and suck dollars out of here.

The forced divestment is for national security reasons. Bytedance, as a Chinese company, is required by law (Cybersecurity Law of the People's Republic of China) to provide full data access to the Chinese government on request, and they are compelled not to reveal when this occurs. Since this is done through legitimate channels (on Bytedance's side), this won't even be caught with an audit. So you have a situation where an app installed on half of America's phones shares all its data with China, along with any potential changes the government recommends for influencing the content.

I appreciate a response like this on HN.

IF there is a problem, let's solve the root issue (which may include looking at the algo feeds of all big tech, etc).

I do have children in that age range and see US social media damaging them. Would HN be OK with European governments banning Meta, X, Discord etc?

> If China sold candies that contained poison and marketed them to Us children, it would be easy, since the FDA prohibits this.

The FDA was created by an act of Congress, as was this ban. These are identical scenarios -- the FDA has a mandate to block certain things, as does the TikTok ban. What's being debated is the constitutionality of it; and there are arguments both ways, but it seems very likely that the ban will hold.

A very naive and hopeful part of me would wish for Facebook, Twitter, and other vapidness-enhancing platforms be regulated too. But the untrusting, freedom loving red-blooded American in me is also wary of government controls and power consolidation bordering on censorship. No easy answers I suppose; we'll just have to find a way to thrive in spite of platforms that profit from our wasted time.

> felt China was intentionally nudging them via algorithmic suggestions away from STEM and toward vapidness

A ban based on a feeling?

I think that's where we were with seatbelts in the 1950s, tobacco in the 1920s and alcohol in the 1850s. In all of those cases, society ultimately decided that guardrails were needed.

I share your cynicism. Do you see any way out?

I feel the same way about the supreme court justices today as I do about Senators for lightly populated states: people operating with little oversight and with little to no accountability to the people who they hold power over. The bigger problem with the Supreme Court is that, largely, the political calculus is mostly cemented for life of the justice.

The only way out I see for the Supreme Court is a Congress and President who are focused on fixing the issue. But, it still feels general awareness of the Supreme Court issues are still to low and not universally felt- maybe in another 2-4 years.

The cynic in me wishes the Democrat appointed judges would start openly taking such large and egregious bribes too to make judicial term limits a bipartisan issue.

Can you give a recent (last 20 years) example of a Supreme Court political not legal decision?

FWIW, I think the Supreme Court will not uphold the ban. But TBH I don't know the details of the 'ban'.

>The outcomes are decided first, and then jurisprudence is employed to substantiate them — not the other way around.

I think this is the thing people don't get. Right or left, Democrat or Republican, it just doesn't matter anymore. You have nine of the best legal minds in the country, supposedly, and they constantly vote along party lines. There is no way that happens if the law is actually being respected.

All courts are, sadly, political because judges are human.

I mean there's an irony inherent in the way the Supreme Court works in the modern American era: judicial review is not present anywhere in the Constitution, and yet the Supreme Court uses it to uphold or strike down law according to the Constitution. It's inherently a broken branch of government and it was a mistake for the Democrats to base the last 50-70 years of social progress on leveraging it.

The ACLU is staffed with extremely competent First Amendment attorneys and yet they seem to be intentionally muddying the water about this. As a 1A scholar (and ACLU supporter) myself, I find it extremely frustrating.

Ok, but I think that's as unconstitutional as a ban, by the same logic. But I'm not a lawyer.

What happens if they refuse to transfer ownership?

That's pointless misdirection.

"I'll burn down your house unless you sell it to me for $1"

See, that's not arson, because you always had a way out.

Like a Russian oligarch?

Really? From my reading of it, it seems to focus how such a ban would inhibit the speech of US citizens who use the application, not TikTok as an entity.

This is the best point I’ve read about this. I don’t think TikTok should be seen as a facilitator of free speech, because it has no obligations to allow it. It’s a private enterprise with their own community guidelines censorship, but most importantly they control the ”algorithm”. No matter how much these platforms claim to be town squares, they are absolutely not and thus serve no essential speech function. If they did, content would not require installing spyware to see. (In my opinion secret mandatory engagement algorithms don’t deserve even section 230 protections).

On the other hand, it doesn’t sit right with me that ”China scary” is enough to outright block whoever is successful in the surveillance capitalist game invented in the US. It screams of political hit job for hire by the tech oligarchs. It’s like banning Taco Bell for health reasons and leaving McDonalds alone. If the modern US was not a plutocracy, this would have been an opportunity for legislators to do real harm reduction and steer predatory mega-corps in a better direction.

To quote directly from the linked article:

"The law’s supporters have, at times, minimized the ban’s impact on the First Amendment, citing the mistaken belief that TikTok users can simply move to another platform. From a constitutional perspective, this is nonsense. The government can’t justify shutting down The Washington Post because readers can simply buy The New York Times instead."

Microsoft is not being banned from China. China just asks that Microsoft sell itself to a non-American company or they will be banned (but it's not a ban).

Absolutely, all of these articles are appeals to emotion. I imagine that works especially for the folks who have an addiction to the propaganda dispenser.

Yeah, and what if they don't comply?