Ban TikTok?

Congressional hearings to ban TikTok.

Montana becomes the first state to ban TikTok statewide.

The popular app becomes prohibited from all U.S. government computers including the military.

Fear of TikTok started with reports claiming the Chinese government holds the potential to harvest vast amounts of personal data. One cyber security firm claims TikTok collects “excessive” amounts of data from users.  Experts warn that once the popular app is in your device, it holds the ability to collect contact lists, calendars, internal and external hard drives and geolocation devices.

TikTok is owned by a Beijing based multinational internet company named ByteDance.  That company denies any connection to the actual Chinese government.  In Congressional hearings ByteDance officials claim the app does not connect to the Chinese government and reports that it would connect represent “misinformation”.

At the same time an Australian-U.S. research firm, Internet 2.0, claims that Chinese authorities can access device data.  They claim tracked “bots” are sent through the app and that they saw data “geolocating back to China”

Legal Questions about Social Media Bans

Wait a minute.  Doesn’t the First Amendment prohibit the U.S. government from meddling in communication? The First Amendment specifically says “Congress shall make no law …”. Here’s the actual text of the amendment:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press …”

First Amendment, U.S. Constitution

Most people in the U.S. consider freedom of speech sacrosanct.  Freedom of expression represents one of the major rights distinguishing the U.S. from other countries.    Remember the Russian group “Pussie Riot“?  Russian leaders jailed them for criticizing the government.  Also, history is full of Third-World tyrants jailing, or doing much worse, to those who express themselves.  Above all if it puts them in a bad light.

So the U.S. values free speech.  News sources favor all kinds of opinion.  In fact our very own leaders spend much of their time berating each other, most often on various cable channels.

At the same time free speech is not absolute.

Inflammatory speech and communication inciting violence is sanctionable.  The classic U.S. Supreme Court case points to yelling “fire” in a crowded movie theatre, where theatre goers could be stampeded to death trying to get out, as a classic example of prohibited speech.

Defamatory conduct also faces legal scrutiny.  One might get away with slander and libel but in the right case one faces liability for actual harm to reputation of individuals and companies.

Speech restrictions go back years, even centuries because the Constitution was written in the late 1700’s.  “Speech” consisted of rudimentary newspapers, bulletins, news letters, and in fact people standing on soap boxes in a park yelling out their “truths”.

Two-hundred years later, the internet and social media enter the picture.

How do the same laws pertaining to a guy on a soap box apply to Facebook, Twitter, Linked In, TicTok and all the rest?

Section 230, newspapers, phone companies and The Internet

From shouting on soap boxes to TikTok the law evolved.  Liability for defamatory speech branched out, dividing “speakers” into 3 categories.

Publishers are entities like newspapers, magazines and broadcasters.  They print or air content they select, edit and otherwise control.  They are liable for defaming those who they slander or libel.  Their liability arises from the fact that they to a great extent exert control over the content.  One editor may see things one way.  Another magazine may develop an extremely different view of life.  Based on the fact that they choose and hold the ability to edit, they remain responsible in a legal sense for their content.

Platforms include entities like the phone companies.  They provide the wires or other means of data transfer and have no control what we put in and get out.  Based on the lack of control over the content, these entities enjoy freedom from liability.  Municipalities also enjoy freedom from liability when people use their sidewalks or other infrastructure to protest.  The law does not hold a city or town legally responsible for the content of demonstrations conducted on government property.  Municipalities face laws liberally requiring them to permit such expressions so holding them liable for the resulting content would make no sense.

Distributors come somewhere in between the above two extremes.  Bookstores, news stands and libraries simply distribute material produced by others.  They make material produced by others available to you and I.  The legal theory here was “notice-and-take-down.”  Unless they were on notice that a publication made defamatory or inflammatory content they enjoyed a liability shield.  Now, once on notice of a defamatory inflammatory content that could go away, if they didn’t remove the offending material.  Even so, such liability came based on the circumstances.

The above distinctions evolved in the 200 years from the Constitution to the internet.  Then came the online world.  The internet broke the mold.

Rather than wait another 200 laws for the law to evolve Congress amended the communications code, Title 47, by adding Section 230.  Section 230 grants internet platforms, for the most part, full immunity for content posted by users.

Facebook, TikTok, YouTube, Twitter and others enjoy full immunity for content posted by users.  Yelp, too, came into existence to help or harm businesses based on reviews.  Yelp gets immunity for bad reviews.  At the same time, Section 23o protects Google itself from liability for search engine results for the most part, with limited egregious exceptions.

Section 230 became controversial in a few “hate group” cases.  As of the time of this post, all of the above remains the law.  But, like much of the law in this area, advocates exist on both sides and things could change.  We will update should this happen.

Ban TikTok? Really?

Congress held hearings considering whether they should ban TikTok.

Give members of Congress the benefit of the doubt.  News coverage often takes things out of context.  But some questions caused some head scratching.  Like, does TikTok access a home’s WiFi?  Commenters questioned whether members of Congress understood the app they sought to regulate.

At the same time, free speech supporters urge lawmakers to refrain from a TikTok ban based on the app’s widespread use as a forum for political expression and artistic expression.  Political speech and art enjoy the absolute highest level of protection under First Amendment law.

Finally, First Amendment supporters point out that government officials at all levels would need to show that national security concerns and data privacy issues can not be addressed in a narrower way before they ban TikTok.

TikTok Factoids:

• The U.S. Senate passed a TikTok ban in 2020.  The ban never passed the House of Representatives.
• TicTok is banned on all U.S. military computers.
• New Hampshire Governor John Sununu ordered all state agencies to remove TicTok from all state computers within 30 days.  Became effective January 15, 2023.
• State of Georgia also ordered TikToc off state computers. A specific exception allows law enforcement use of the app in their legitimate investigative work.
• Computer experts contend government can ban TikTok all they want. Devoted TikTok users could configure a workaround to use the app through a virtual private network that anchors it’s outwardly appearing login location outside the geographic area of the ban.

This summary authored by Massachusetts and New Hampshire personal injury attorney Andrew D. Myers.  Don’t trust your personal injury case to the TV lawyer too busy acting in their latest TV commercial.  If you want to discuss the details of your car accident, wrongful death, slip and fall or other serious injury case contact us.  With over 25 year of experience representing clients, we have recovered millions for our clients.  We will also meet with you personally and not shove you into a room to fill out forms.

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