At Liberty Podcast: Banning TikTok is a Really Bad Idea

KENDALL CIESEMIER [00:00:01] From the ACLU, this is At Liberty. I’m Kendall Ciesemier, your host. The social media platform, Tik Tok, has had a meteoric rise. The app has become a hub for educators, activists, and creatives to influence all aspects of culture. From launching dance trends, catapulting decades old books onto bestseller lists, to educating voters and organizing changemakers, Tik Tok has become key to how over 150 million users across the United States create, engage, and learn. But a new movement has arisen to ban the app owned by the Chinese company ByteDance. Lawmakers at the state and federal level are growing concerned over the prospect of American users data becoming accessible to the Chinese government. While data privacy is a concern across all social media apps, the singling out of TikTok points to an anti-Asian sentiment that is simply racist. What’s more, the banning of a social media app in general would be a dangerous act of censorship on the free speech of so many Americans. Today, we’ll hear from three TikTok creators about what brought them to TikTok and why the platform has become a nexus of organizing education and entertainment for young Americans. Then Ashley Gorski, Senior Staff Attorney at the ACLU National Security Project, will help us unpack the bans.

KENDALL [00:01:46] Jamira Burley has been an organizer since she was very young, leading anti-violence movements and racial justice efforts since she was in high school. She’s worked at the United Nations and at Amnesty International and continues to use her voice as a human rights activist and social impact strategist. She originally turned to TikTok as a user.

JAMIRA [00:02:08] When I joined the platform maybe about a year ago, I was just an observer. I just wanted to see what folks were saying and how they were utilizing the app, what were the issues they were talking about. And I started slowly making videos about six months ago because I did think that there were things left out of the conversation. I thought there were a lot of people speaking on behalf of the issues that I care about, but didn’t have an organizing background that wasn’t from an impacted community. And I wanted to just add texture to the conversation and to participate in some of the dialog that was happening in online.

KENDALL [00:02:48] Do you feel like the platform itself has made way for more nuanced or a deeper level of conversations about things like racial justice? A new wave of conversations became more widespread after the summer of protests, the murder of George Floyd, Breonna Taylor. Where do you think TikTok is as a platform for conversations about racial justice and how we carry on?

JAMIRA [00:03:17] As someone who, you know, has always been on Twitter, has been on Instagram, has been on Facebook, is on LinkedIn, I think Tik Tok is unique in the sense that it provides an opportunity to have those nuanced conversations with a more diverse group of people. You know, whether it is Asian Americans, Hispanic Americans. You know, it is allowing for a much deeper inner -intersectionality of issues. And I think it is allowing for new voices to emerge. TikTok is, you know, making way for more younger and more inspirational and I would say radical voices in a good way, radical voices who are asking, why can’t we challenge the institutions that say that we have to, you know, wait our turn or progress takes time? And I think those kind of questions are allowing all of us, especially those who have been in the game for a long time, to almost reimagine how the world can look through a new generation of voices.

KENDALL [00:04:12] This ability to connect across communities is also what drew longtime disability advocate and founder of Diversability Tiffany Yu to create on TikTok.

TIFFANY YU [00:04:23] So the injury I have I have what’s called a brachial plexus injury. More informally, one of my arms was paralyzed in a car accident. And when I searched the hashtag brachial plexus injury on TikTok, I couldn’t really find any content featuring teenagers or adults who had the injury. It was mostly parents of kids who had the injury. And so, most of my content in the beginning was what I call paralyzed arm content. It was just showing how I navigate daily life as someone with a paralyzed arm. You found Tiffany tying her shoe laces, putting on a necklace, putting toothpaste on a toothbrush, like literally things that people didn’t really think that much about. And at the time, I said, I want to show -I want to show how I live life through and through a more empowering lens than an occupational therapist, envisioning what they think it might be like to zip a jacket up with one hand. And as someone who has lived with my injury for 25 years. I said, What I’m seeing on the internet doesn’t look like how I do it.

KENDALL [00:05:28] What about TikTok as a platform made it so enticing? And how have you found building a community on TikTok to be?

TIFFANY [00:05:36] I’ve had Twitter, Facebook, Instagram, I’ve had all of these other platforms, and what I appreciate about Tik Tok is how centered it is on discovery. Because for a long time on these other platforms, what showed up on your feed was only people you opted into. Now if I go out and I ask people who are not connected to disability in one way or another, they might not opt in. I still remember my first viral video and it was filmed in July of 2020 and I said, “Hi, I’m Tiffany and one of my arms is paralyzed. This is how I put a mask on with one hand. If I can do it, you can do it too.” And I got so many comments being like, “That’s so easy to do.” And I’m like, “That’s the point.” But but that got over a million views, right? And I don’t think that 2009 Tiffany, who just wanted ten people to show up to her event, would have ever envisioned that. You know and and I’ve been tracking the views on the anti-ableism series that over 5 million people would be interested and and opting in to wanting to learn more about this topic.

KENDALL [00:06:44] Like Tiffany and Jamira, Talia Lichtstein also turned towards TikTok in the wake of the COVID-19 pandemic. She hoped to jump start a career in comedy and has now amassed a following of 1.3 million followers on her page, where she discusses the politics of navigating New York City and dating as a woman in her early twenties.

TALIA LICHTSTEIN [00:07:05] I graduated in 2021 from UC Berkeley and always knew throughout high school and college that my aspirations lie in political satire and the melding of entertainment and politics and entertainment and news. All of the applications I looked at for these entry level positions were asking, “What’s your tick tock account? What is your social media? How many followers have you built yourself? Because why should we give you a job making content for us if you have all the tools in your hand? Why haven’t you done it yourself?” And I was like, “Touche.” So, I started making TikTok videos. They started to go viral, and instead of attaching them to applications to work for other people, I realized there was an opportunity here to work for myself. So that’s what happened. And in the summer after college, I just focused on building this account, and it has sustained a full-time career and the beginnings of what I hope will be like a long-time career in media.

KENDALL [00:08:09] In the summer of 2022, we were confronted with the overturn of Roe v. Wade, and with it, so many of us lost access to a safe and legal abortion. It was in this moment that Talia knew she had to share her own story. People needed to understand what was at stake. You shared your story of having an abortion on TikTok. What was that decision like for you to make?

TALIA [00:08:43] Much like the abortion itself, it wasn’t a decision. It wasn’t hard for me personally. I really didn’t struggle with like, oh, should I talk about it? I always wanted to. It was very easy for me to decide to have an abortion and very easy for me to decide to share it. But I recognize that that is far from most people’s experience. So, I feel that if I am blessed with the ability to do it and to talk about it, why would I not do that and encourage other people to? And then a lot of people will DM me more than you could ever imagine. Like young women who are like, “I want to talk about it, but I can’t. My parents, I can’t. I still live with my parents. I don’t know what they’ll do.” “I’m still dependent on the person that got me pregnant.” “I’m still it’s it’s a religious thing. I’m really big part of my religious community.” I say, “I’m not telling you to talk about it. I just want you to know that somebody else is there.” And there are so many people like who-who wish they could but can’t, who wish they could, but aren’t able to, like financially they can’t. People who don’t want to talk about it or who are ashamed of it, but it’s nice to know that somebody else feels that way. It’s just I think it’s a luxury that I’ve been blessed with. It’s a gift to be able to talk about it. Not having the option to share creates a hole in you. It’s very, very hard to carry that kind of burden even if you don’t feel like it was a mistake. I never felt guilt about it, but I hated not talking about it. And when I finally did, it was like so freeing, so important. I have proof, written proof that people have benefited from my openness about it.

KENDALL [00:10:26] This is the storytelling and political marketplace. The creators like Tiffany, Jamira, and Talia have helped to build on TikTok that many Americans engage with every day. But now the platform is being threatened by efforts from lawmakers across the country trying to ban the app. To discuss the how and why of this movement to ban TikTok, I spoke with Ashley Gorski, Senior Staff Attorney at the ACLU’s National Security Project. So, before we discuss three particular TikTok bands that are pending at the state and federal levels, I want to frame this conversation by understanding first why lawmakers across the country are clamoring to ban TikTok. Because TikTok is owned by the Chinese company ByteDance, some fear that user data could be handed over by sale or by force to the Chinese government. Additionally, some worry ByteDance could push propaganda or misinformation on the platform. But has any of this actually happened yet? And is there any proof that these concerns are valid?

ASHLEY GORSKI [00:11:31] There is no evidence of specific or direct national security harm that results from TikTok. There is no evidence that the Chinese government has access ByteDance’s and TikTok’s data. There have been some reports of TikTok censoring certain information, but other researchers have found that controversial information on the platform, for example, like the treatment of Uyghurs in China, is freely accessible and available. So, I would not say that there is definitive evidence of censorship by the Chinese government. And on the question of propaganda, I don’t think there’s any evidence that the Chinese government is using the platform to promote propaganda either. And then I think the critical question here, is whether there’s any evidence that the Chinese government’s access to data and there is no public evidence of that.

KENDALL [00:12:26] So lots of concerns to contend with, but no actual evidence that any of these concerns have, at this point, bore out. So, we know that TikTok has begun a plan to store American users data on servers owned by a U.S. Company. But still, that hasn’t quelled the calls from lawmakers to ban the platform. So, what is this really about, Ashley. How much do you think that this drive to push TikTok is driven by this anti-Asian sentiment or an anti-Chinese sentiment?

ASHLEY [00:13:02] I certainly think that is a significant factor. We are in this moment of increased geopolitical rivalry between the United States and China. And in so many ways, these efforts to ban TikTok are rooted in xenophobia and anti-China sentiment. And the Trump administration, as people may recall, tried to ban TikTok and WeChat, and it was stopped by the courts. But in conjunction with those efforts, there was a lot of overheated rhetoric and the rhetoric concerning China was also very extreme. And we’re seeing that again today. And there are real world consequences that flow from this kind of rhetoric and from the conflation of the Chinese government with people living in China or with people of Chinese descent. And ,as I’m sure your listeners know, hate crimes against Asian-Americans surged during the pandemic, and political rhetoric was clearly a factor in that. There has been recent reporting from CNN and from other outlets about ongoing concerns in Asian-American communities about hate crimes and how the TikTok ban rhetoric is exacerbating those concerns. And just taking a step back, I do want to be clear. There is no question that the Chinese government engages in authoritarian rights, violating abuses, and there are good reasons to be concerned about the possibility that TikTok may be required to share data with the Chinese government. We don’t have to turn a blind eye to that. But the singling out of TikTok, the political tone is disproportionate, and I worry about the snowballing effects.

KENDALL [00:14:37] Yeah, no, I think that’s really important to be clear that we’re not necessarily saying that TikTok doesn’t have the ability to do something nefarious or that they aren’t doing things with our data. Other apps collect data in similar ways to TikTok. So, I want to cut through the rhetoric a little bit. Can you explain to us why TikTok’s practices, data practices, even if they are there are data privacy concerns, would not be unique to just TikTok as a platform.

ASHLEY [00:15:08] Sure. So Tik I think as everyone knows, does collect user data like your location, your search history, information about the videos you watch. But the types of data that TikTok collects are largely the same types of data that other social media platforms collect. So selectively, banning a single app would not solve Americans’ data privacy problems, visa ve our government or the other governments. And what we need is meaningful surveillance reform here in the U.S. And meaningful consumer privacy reform that would limit the data that companies are collecting in the first place, including by requiring consumers to affirmatively opt in to the sharing of their information with companies and then restricting those companies’ ability to use that information. The proponents of the TikTok ban would say, well, what’s different is that ByteDance could be required to provide this information to the Chinese government under their national security laws. There’s no evidence that ByteDance has provided any information to the Chinese government, and even if they were to do so, there’s no evidence of serious, overwhelming imminent national security harm to the United States from the provision of that information. And that’s really what’s relevant for the purposes of considering the constitutionality of this type of ban under the First Amendment.

KENDALL [00:16:37] You just hit us up there perfectly. This desire to get rid of maybe the main platform today used to exercise free speech on the Internet, on social media, is an inherent threat to Americans’ First Amendment rights. Can you break down for us why banning TikTok is a free speech issue?

ASHLEY [00:16:58] Absolutely. So, under the First Amendment, we have the right to speak, to express ourselves, to receive information from others, and to associate freely. And banning TikTok would implicate each of those rights. It would stifle free expression. It would restrict the public’s access to an important source of information. And one of the counterarguments here is that, well, people could go to another social media platform, but anyone who’s tried to move, for example, from Twitter to something like Mastodon understands that you can’t just recreate your world on Twitter, on a new platform. And under the First Amendment, the government cannot impose this type of total ban on a communications platform unless it is the only way to prevent extremely serious, significant and immediate harm to national security. And there’s no public evidence of that type of harm. And even if that type of harm did exist, a ban would not be the only option for addressing it. And that’s the really important point. The ban is like a sledgehammer and there are more tailored, fine-tuned ways to address potential risks from TikTok than a ban.

KENDALL [00:18:08] So the burden of proof here is actually pretty high for them to prove that there is some significant imminent danger. Even then, you say there are other alternatives other than banning speech itself. So, the Trump administration tried to block TikTok and it got blocked up in court. Did it get blocked by a free speech concern? Was that the legal grounds upon which it got blocked in court?

ASHLEY [00:18:36] Yes, there were a few different suits each, a little bit different. But the First Amendment absolutely played a role. And then another law played an important role in that law is called the Berman Amendment. And for context, in the 1970s, Congress gave the president significant authority to regulate economic transactions and to impose sanctions when there is a national emergency. So, for national security purposes and then in 1988, there was recognition by Congress that this power went too far. And so, Congress enacted an important limit on the president’s power called the Berman amendment. And that law protects Americans ability to receive information regardless of where that information comes from. So that means that a U.S. government ban on a social media platform simply because the company behind that platform is based in China would run afoul of the Berman amendment. And so, the courts that were considering President Trump’s efforts to ban TikTok and WeChat based their decisions both on the Berman Amendment and the First Amendment.

KENDALL [00:19:44] Gotcha. I think that’s important context as we get into discussing some of the-the bans and or legislative efforts to ban TikTok. I want to start first with the Montana ban. So, two weeks ago, the Montana state legislature passed a bill banning the use of Tik Tok in the state. That currently awaits the governor’s signature, but can you unpack this looming legislation for us? And do you expect it to get blocked in court?

ASHLEY [00:20:11] Sure. So, this is the first Tik Tok ban passed by a state legislature. It has not been signed by the governor yet, as you know. And there’s some question about whether the ban will ultimately be signed in this form. But by all accounts, the ban will be signed in some form by the governor. That’s-that’s what we expect. Again, this is blatantly unconstitutional. The law singles out Tik Tok, very serious First Amendment problems with this kind of categorical ban on a communications platform. It’s also unclear how it would actually be implemented because Google and Apple don’t geofence their app stores by state. They’re not able to say, “You user, you appear to be in Montana and you’re getting served a different version of the App Store that doesn’t have TikTok.” They said that they can’t do that. And given that that’s the case, it doesn’t it’s not clear exactly how the Montana ban would even be implemented. I would not expect any court reviewing the ban that’s been passed by the Montana state legislature to uphold that ban because the First Amendment problems are so serious.

KENDALL [00:21:21] The bill specifies that users would not be penalized but would fine entities such as the App Store up to $10,000 a day if they facilitated access, which automatically just seems from a from an operations perspective, a very difficult thing to accomplish. It’s not what I, I think would have originally envisioned. It is seen a little bit as a road map or guinea pig, if you will, for these national TikTok bans. The ACLU, I know, is particularly focused on two bills that are active in Congress that threaten TikTok, the DATA Act and the RESTRICT Act. So, I want to talk about both of them. But let’s start by discussing the DATA Act. In February, Representative McCaul introduced the DATA Act, which would require the White House to determine, in quotes, “if reasonable grounds exists for banning TikTok and to move forward if so.” So, what would reasonable grounds be for Congress banning an app?

ASHLEY [00:22:25] Sure, we have staunchly opposed the DATA Act. And under the law, Congress would be requiring the U.S. Treasury Secretary to forbid U.S. citizens from engaging with entities that may transfer sensitive personal data to a foreign entity that is, quote, subject to the influence of China. That is a vague standard, but the bill was very clearly designed and intended to ban TikTok. The bill would also undermine Americans ability to receive information, informational materials, regardless of where those materials come from. Americans have that right under the First Amendment, to receive information and to receive information from abroad. But the DATA Act would wind back the Berman Amendment’s protections in a really problematic way. It would essentially gut the Berman Amendment.

KENDALL [00:23:18] What do you think is the are the chances that the DATA Act actually progresses from where we see it now? Has it been met with enough resistance to essentially threaten it, weaken it, nullify it publicly or. Are we are we sensing a real clear threat when it comes to the DATA act?

ASHLEY [00:23:38] So after the DATA Act was introduced, it moved to a markup in the House Foreign Affairs Committee very quickly. But since then, there has not been a lot of movement. I think most of the national media attention has been focused on a second bill that was introduced in the Senate in March called the RESTRICT Act.

KENDALL [00:23:58] So in March, Senators Mark Warner of Virginia and John Thune of North Dakota introduced the Restrict Act. This does not name TikTok specifically and would grant the Secretary of Commerce new authority to prohibit people from using certain apps. This is the evolution that we are talking about, subject to the jurisdiction of China and other foreign adversaries. Is the difference that they are just one is has become the next version. The RESTRICT Act is the-the DATA Act 2.0., is that what we’re talking about?

ASHLEY [00:24:31] Not exactly. They’re definitely two distinct bills on two separate tracks. The RESTRICT Act is much broader. It uses a different framing. It gives the Secretary of Commerce tremendous discretion to ban not just TikTok, but many other apps and products from companies subject to the jurisdiction of China. As you noted, and however, it brings you to the same place because it’s designed to facilitate a TikTok ban. And if the bill were to result in a TikTok ban, if the Commerce Secretary exercised her discretion and ban TikTok, that would violate the First Amendment. The RESTRICT Act doesn’t directly gut the Berman Amendment, but it is designed to get around the Berman Amendment, which is a problem. And it also imposes severe criminal penalties up to 20 years in prison and hundreds of thousands of dollars in fines on people who attempt to evade any ban that the Secretary of Commerce imposes. So, if, for example, the Secretary banned individuals in the U.S. from using or accessing TikTok, the bill could criminalize a person’s use of a virtual private network or VPN to access TikTok. And it would also limit people’s ability to sue the federal government for overreach or abuse that could occur under the statute.

KENDALL [00:26:00] So with all of that said, why has the Biden administration come out in support of the RESTRICT Act but not the DATA Act?

ASHLEY [00:26:06] I think that the Biden administration is supportive of the broad powers that the RESTRICT Act would grant to both the Secretary of Commerce and the President. It would just give them significantly more discretion to ban apps and products that they otherwise would not have the power to ban under the Berman Amendment and that particular statutory framework. So, I think the Biden administration probably sees the RESTRICT Act as giving it useful authority. At the end of the day, the RESTRICT Act is designed to be a TikTok ban. So, you still have the First Amendment problem we’ve been discussing.

KENDALL [00:26:52] Like the ban in Montana, Ashley said any efforts by Congress to ban the app are sure to face uphill battles in court. The ACLU stands ready to protect Americans’ First Amendment rights to express their freedom of speech on TikTok. So, Jamira, do you think that in some way that there is some level of political fear by the people who are in the opposition to these young people who are rallying and organizing on this platform?

TIFFANY [00:27:26] I actually think that there is real fear on both sides of the political spectrum or all sides of the political spectrum. I think there is something to fear. I think when you when you can go on a platform and you see young people as young, like very early ages and as old age as you’ll find in the platform, starting to communicate with each other in a way that, you know, I think for young people to see like these are not new issues. These are issues that have always existed within our society and something has to change. So, I do think that there is real fear that, you know, with TikTok, it’s going to be harder to control what type of information young people have access to, the conversations that they are engaging in, and what they’re planning to push back against traditional institutions of power that are not working in their best interests.

KENDALL [00:28:10] I asked Tiffany, Jamila and Talia what’s at stake if TikTok were to be banned? What do you think we’ll lose with TikTok ban?

TIFFANY [00:28:21] I think for me, there are kind of like three big things that we lose if TikTok goes away. Disabled people are twice as likely to live in poverty. And what TikTok has unleashed for many of us, is that we actually can create a career being a creator. The second is that disabled people find each other online, and it’s where we find community first, and it’s where our social fabric and many of our social connections are. And then the third, is that for people who are not disabled, it makes our experience more accessible to them and through a more empowering lens than some of the pity victim narratives that the mainstream media still is, including in their movies and TV shows. It’s like the Representation matters thing.

TALIA [00:29:07] My world with that TikTok will start off a little scary. It makes up for a huge chunk of my income. It is my outlet creatively, my primary outlet. And I think for the government to eliminate what has been a substantial source of income for millions of people after a recession during the pandemic, after like a bunch of us couldn’t get jobs and we’re living off of relief funds. To cut this without any sort of relief program for people who are content creators, because it is now a legitimate job, is kind of evil. It would be really, really not cool. We are just completely pretending that there aren’t a ton of people who need this app and you have to address those people if you’re going to take it away. You can’t just expect us to like overnight find new jobs with no relief. This is becoming new media, yet it’s not taken seriously and regarded as a legitimate way for people to find an audience and-and publish work.

TIFFANY [00:30:14] I think we lose our autonomy. The thing about TikTok, right, is that there is nothing TikTok is doing that no other social media is not doing in the sense in the back end. Right. Like our data is being sold to countries all over the world, right? Like, our data is unsecure in so many ways. And instead of Congress taking the active steps, instead of them creating laws that actually protects user data in a really substantial way, they’re trying to ban individual apps, which isn’t solving the problem. And so, I think what we lose is for the hundreds of thousands, if not millions, of voices to connect with each other around shared experiences, shared trauma. We lose so much intellectual knowledge that we see are being pushed out of our educational institutions that folks are finding online. And we also lose an economic angle for a lot of people who have not been able to support their families any other way, but been able to, you know, substantially grow their following and monetize it.

KENDALL [00:31:12] This the right to speak, to share, and to educate is also a right to connect.

TIFFANY [00:31:17] And one time I was at San Francisco Airport. I used to live there and I had my mask on and I was getting some food. And someone who worked at the airport came up to me and said, “Are you Tiffany You on TikTok?” And I said, “Yeah, like. And that was the first time I ever got recognized”. I don’t even have that large of a platform compared to some other disabled creators. And he said,- So a lot of my story is not only do I have a paralyzed arm, I was diagnosed with post-traumatic stress disorder in 2019 and try to be transparent about what that healing journey is like.” And he came up and he said, “Hey, I do a lot of work with veterans. And your content, your content just reminds me that healing is an ongoing journey. And, you know, sometimes I show these to the veterans that I work with.”

KENDALL [00:32:05] Yeah. Wow, that’s so meaningful. I thought, that’s really beautiful because it shows that there is some kind of just connectivity between all of these different struggles that we face in our life and that, like, we have a lot more in common than we might think. Thanks so much to Jamira Burley, Tiffany Yu, Talia Lichtstein, and Ashley Gorski for joining us. And thanks to you for listening. If you enjoyed this episode, subscribe to At Liberty wherever you get your podcasts and rate and review the show. We really appreciate the feedback. Okay, Until next week. Stay strong.