Last week was an... interesting one in regard to TikTok. The massively-successful social network app with 50 million daily active users is in the sights of the US House of Representatives. They feel the app should be banned but that is a real slippery slope and one that could backfire drastically. Let's rewind a bit to see how we got here.
A Chinese company called ByteDance owns TikTok. For a while the app floundered as a network that never caught on in its original incarnation Music.ly. They rebranded into TikTok and shifted from a music lipsyncing app into the video-focused app it is today. Complete with a quick-to-learn-your-preferences algorithm, TikTok found success. It has resonated with short-form video creators that evoke the lost opportunity of Vine.
Last week TikTok's CEO Shou Zi Chew made his way to Washington in order to attempt to answer lawmakers' questions. I say "attempt" because he was barely allowed to talk. Further, so many of the questions were nonsensical. From constant interruptions to lawmakers stating points of view over and over, Chew didn't get much opportunity to, you know, testify; The entire reason he was there.
From the government's point of view, TikTok is bad, wrong, dangerous and should be banned. Data collection, harmful-to-children "challenges", and a direct connection to China are the three pillars of their attacks. Are they wrong? No. Are they wrong to work toward banning the app? Very.
It comes down to a simple fact: Computer code is free speech. Banning the app or anything on the app (that does not fall under section 230) is the government passing a law that prohibits speech. Full stop. This is not my opinion. The Supreme Court has already ruled in these cases. This 2018 NOVA article from Allison Eck explains more.
But what about free speech?
“Whether code is covered by free speech is actually pretty settled. The answer is yes,” said Kendra Albert, a technology lawyer and affiliate at the Berkman Center for Internet and Society, as well as a clinical instructional fellow at the Cyberlaw Clinic at Harvard Law School.
In the 1990s, the Electronic Frontier Foundation—which, at the time, was a fairly new organization—took on a series of cases on behalf of a cryptographer named Daniel Bernstein, who argued that he had a right to make public certain cryptographic programs that he’d created. Bernstein wanted to publish an algorithm, a mathematical paper that explained the algorithm, and the source code for a computer program that incorporated it. But the government required Bernstein to apply for a license to do all of this— and to submit his ideas for federal review.
Bernstein sued and eventually won the case. Software source code was deemed speech protected by the First Amendment.NOVA
For the US government to look to ban TikTok is a failure to understand that they can't. It is literally unconstitutional to do it. The company will sue and eventually win. The true failure is in the lawmaker's inaction on data privacy. Everything TikTok does is legal because there is nothing on the books stopping data collection by companies who convince the public to use their apps.
Facebook and the2013 Cambridge Analytica scandal was the shot across the bow that the United States needed robust and comprehensive data protection laws on the books. Four years ago it was thought Mark Zuckerberg's feet were to be held to the fire. Instead, we got questions asked to him that made no sense and proved a fundamental ineptitude toward understanding how any of this technology works. Lawmakers just wanted to yell at him. This mirrors exactly how Chew's testimony went last week. Rinse and repeat for Google CEO Sundar Pichai later in 2018, Apple CEO Tim Cook in 2020, and then-Twitter CEO Jack Dorsey in 2021.
The final nail in the coffin to enact data privacy laws should have been Frances Haugen's House testimony in October 2021 that clearly spelled out how Meta (still called Facebook) was unabashedly collecting and manipulating user data on their platform.
Here we are near the end of March 2023 and what has been done to counter every single instance of data privacy that should be protected? Zero. Every time there is testimony from an American CEO, lawmakers yell at them and go home. But what's good for Google and everyone else is not good for TikTok. It's a modern-day Red Scare.
Chew and TikTok are not innocent in all of this. The app scoops up as much as it can and is in the business of using that data for its benefit. Same as every. single. tech. company. The difference is the Chinese connection. The government may want to frame it as "protecting the children" but we know that is complete BS.
As with any new network or technology, there have been "scares". So-called "challenges" aimed at children and can be harmful would seem to permeate the app at every turn. You can trace this back to MySpace in the digital age and Dungeons & Dragons going back to the 1970s. People lose their shit and let fear dictate their moves. All platforms have issues and easily happen on TikTok in addition to others.
The current issue with TikTok is not everything they have on their platform or what they do with everything the app collects. The issue is what they do is not regulated in any way. That goes for them and everyone else. And until lawmakers stop seeing this as a "Chinese app does bad things" situation instead of "Americans need legal data privacy protections" this will go nowhere. Yesterday it was Facebook. Today it's TikTok. Tomorrow it will be something else.
And nothing will change except the name.
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