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The Supreme Court Upheld the US TikTok Ban. Now What? nyu edu
School of Law's Christopher Sprigman on free speech concerns and the future of social media regulation
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To legal scholars like Christopher Jon Sprigman, Murray and Kathleen Bring Professor of Law at NYU’s School of Law, the decision renews alarm around the deprioritization of free speech protections and the future of social media regulation by Congress and in federal courts. Late last year, Sprigman joined 34 other legal scholars in filing an amicus brief that outlined these concerns to the Supreme Court.
“The focus of the amicus brief was to describe the TikTok law for what it was—a gigantic speech restriction, unredeemed by any demonstrated compelling justification and not narrowly tailored to minimize the speech harm,” said Sprigman.
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You joined 34 other legal scholars specializing in internet law and First Amendment law to file an amicus brief for this review. What drew you to this case?
The government is engaged in a major restriction of speech rights here based on a supposed national security justification. But the government has made public almost no evidence supporting its concerns. Nor has it explained why a forced divestiture, which—if it is not done will lead to a ban—is necessary as opposed to some less restrictive approach, including the “Project Texas” approach that TikTok itself put forward.
Project Texas was a program which, among other things, would put US user data and content moderation within a US-based subsidiary, and put that subsidiary under the supervision of US tech giant Oracle. These steps were designed to keep both user data and content out of the hands of the Chinese government. The government basically ignored the proposal.
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What makes this case an issue of free speech, rather than the more narrow question of national security risk?
The government itself said this case is about speech. One of the government’s rationales for the act—to limit the People’s Republic of China’s (PRC) ability to manipulate content covertly on the TikTok platform—is stating an express speech restriction, on which is both content and viewpoint-based. In other words, it seeks to suppress pro-PRC speech.
The government is arguing that ByteDance, the owner of TikTok, is acting as publisher of TikTok because it owns and uses an algorithm that can make recommendations to users. Isn’t that true for all social media platforms? What do you make of this argument?
The argument proves too much, as you suggest. And it would suggest that the government has a wide-ranging power to regulate speech on internet platforms, or indeed on broadcast platforms, if it makes a determination that such speech raises national security concerns—and that it need not offer much, or any, public evidence supporting that determination.
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What will this ban mean for the future of social media regulation?
The court has basically told other platforms that they shouldn’t worry, but the ways in which the Court has decided to distinguish TikTok are so weak that other platforms probably should actually worry. By allowing the TikTok ban to be upheld because of unique data capturing, the court is constructing a world that doesn’t exist. The data capturing done by TikTok looks a lot like data capturing on other platforms that people use on the internet. Users’ personal information is often collected, and depending on the terms of service of the site, it could be sold or transferred to third parties that may not hold it securely. This means that foreign adversaries can still get access to that data by stealing or buying it.
It’s hard to say if the court is being naive, or getting the result they want by putting TikTok in its own class—but they’re wrong.
School of Law's Christopher Sprigman on free speech concerns and the future of social media regulation
...
To legal scholars like Christopher Jon Sprigman, Murray and Kathleen Bring Professor of Law at NYU’s School of Law, the decision renews alarm around the deprioritization of free speech protections and the future of social media regulation by Congress and in federal courts. Late last year, Sprigman joined 34 other legal scholars in filing an amicus brief that outlined these concerns to the Supreme Court.
“The focus of the amicus brief was to describe the TikTok law for what it was—a gigantic speech restriction, unredeemed by any demonstrated compelling justification and not narrowly tailored to minimize the speech harm,” said Sprigman.
...
You joined 34 other legal scholars specializing in internet law and First Amendment law to file an amicus brief for this review. What drew you to this case?
The government is engaged in a major restriction of speech rights here based on a supposed national security justification. But the government has made public almost no evidence supporting its concerns. Nor has it explained why a forced divestiture, which—if it is not done will lead to a ban—is necessary as opposed to some less restrictive approach, including the “Project Texas” approach that TikTok itself put forward.
Project Texas was a program which, among other things, would put US user data and content moderation within a US-based subsidiary, and put that subsidiary under the supervision of US tech giant Oracle. These steps were designed to keep both user data and content out of the hands of the Chinese government. The government basically ignored the proposal.
...
What makes this case an issue of free speech, rather than the more narrow question of national security risk?
The government itself said this case is about speech. One of the government’s rationales for the act—to limit the People’s Republic of China’s (PRC) ability to manipulate content covertly on the TikTok platform—is stating an express speech restriction, on which is both content and viewpoint-based. In other words, it seeks to suppress pro-PRC speech.
The government is arguing that ByteDance, the owner of TikTok, is acting as publisher of TikTok because it owns and uses an algorithm that can make recommendations to users. Isn’t that true for all social media platforms? What do you make of this argument?
The argument proves too much, as you suggest. And it would suggest that the government has a wide-ranging power to regulate speech on internet platforms, or indeed on broadcast platforms, if it makes a determination that such speech raises national security concerns—and that it need not offer much, or any, public evidence supporting that determination.
...
What will this ban mean for the future of social media regulation?
The court has basically told other platforms that they shouldn’t worry, but the ways in which the Court has decided to distinguish TikTok are so weak that other platforms probably should actually worry. By allowing the TikTok ban to be upheld because of unique data capturing, the court is constructing a world that doesn’t exist. The data capturing done by TikTok looks a lot like data capturing on other platforms that people use on the internet. Users’ personal information is often collected, and depending on the terms of service of the site, it could be sold or transferred to third parties that may not hold it securely. This means that foreign adversaries can still get access to that data by stealing or buying it.
It’s hard to say if the court is being naive, or getting the result they want by putting TikTok in its own class—but they’re wrong.
