The censors who abound in Congress will likely vote to ban TikTok or force an ownership change. It will probably become law soon. I think the Supreme Court will ultimately rule this unconstitutional, because it would violate the First Amendment rights of more than 100 million Americans who use TikTok to express themselves.
Furthermore, I believe the Court will find that forced sales violate the Fifth Amendment. Under the Constitution, the government cannot take your property without charging and convicting you of a crime – in short, without due process. Since Americans are part of the ownership of TikTok, they will eventually have their day in court.
The Court might also conclude that naming and forcing the sale of a specific company amounts to an Act of Accession, legislation that targets a single entity.
These are three significant constitutional arguments against Congressional forced sale/ban legislation. In fact, three different federal courts have already invalidated legislative and executive attempts to ban TikTok.
If the damage to one company wasn’t enough, there’s a very real danger that this clumsy attack on TikTok could actually give the government the power to force the sale of other companies.
Take, for example, Apple. AS The New York Times reported in 2021, “In response to a 2017 Chinese law, Apple agreed to move its Chinese customers’ data to China and to computers owned and operated by a Chinese state company.”
Sound familiar? Lawmakers who want to censor and/or ban TikTok point to this same law to argue that TikTok may (one day) be forced to hand over American user data to the Chinese government.
Note that most thoughtful speakers do not argue that this happened, but rather that it could. TikTok banners don’t want to be troubled by anything inconvenient like proving in court that this is happening. No, the accusation is enough to believe you have the right to force a sale or ban TikTok.
But let’s go back to Apple. It is not theoretical that it could hand over data to the Chinese communist government. It already has (although Chinese user information). However, it could be argued that Apple, by its actions, could fall under the TikTok ban requiring the sale of an entity: under the influence of a foreign adversary.
(Now, obviously, I think such legislation is absurdly wrong and would never want it to apply to Apple, but I fear the language is vague enough that it could apply to many entities.)
AS The New York Times explains: “Chinese government employees physically control and manage the data center. Apple has agreed to store the digital keys that unlock its Chinese customers’ information in those data centers. And Apple has abandoned the encryption technology it uses in other data centers after China didn’t want to Allow it.”
This sounds exactly like what TikTok censors describe in their bill, except as far as we know, only Americans living in China could be affected by Apple’s adherence to Chinese law. TikTok actually spent a billion dollars agreeing to host all of America’s data at Oracle in Texas.
Are there other companies that could be affected by the TikTok ban? Commentary by Kash Patel in The Washington Times he claims that Temu, an online marketplace run by a Chinese company, is even worse than TikTok and should be banned. He claims that Temu, unlike TikTok, “does not employ data security personnel in the United States.”
And what about the global publishing enterprise Springer Nature? It has admitted which censors his scientific articles at the request of the Chinese communist government. Will the TikTok invoice also force the sale?
Before Congress rushes to ban and punish every international company doing business in China, perhaps it should stop, take a breath, and reflect on the consequences of rapid legislative isolationism against China.
The drive for populism is giving rise to the abandonment of international trade. I fear, in the hysteria of the moment, that the end of trade between China and the United States will not only cost American consumers dearly, but will ultimately lead to further tensions and perhaps even war.
No one in Congress has more strongly condemned the historic famines and genocides of Communist China. I wrote a book, The case against socialism, describing the horrors and inevitability of state-sponsored violence in the pursuit of full socialism. I recently wrote another book called Deceitcondemning Communist China for hiding the origins of COVID-19 in the Wuhan laboratory.
Yet despite these scathing criticisms, I believe that the isolationism of the Chinese hysterics is a mistake and will not end well if Congress insists on this path.