Why isn’t a government TikTok ban coming to your phone anytime soon?

At least two dozen states and a number of universities have banned TikTok, and more are considering similar restrictions on the short-form social media app. Meanwhile, a bipartisan coalition in Congress is pushing for a complete ban on the app in the US, out of concern that the Chinese government could force the app’s Beijing-based parent company, ByteDance, to track Americans.

But banning the app can be much more difficult than unplugging its servers, according to legal scholars and experts on the subject.

“Congress can and will pass any law it wants. But that will also be constitutionally challenged,” Ashley Nelson, senior practice professor at Tulane University’s Freeman School of Business, told Yahoo Finance.

“Whatever happens, I foresee a challenge that will probably go all the way to the Supreme Court. As a result, I don’t see how the government can really get away with banning all TikTok from everyone.”

This is because the Constitution protects Americans from government restrictions on speech wherever that speech is held.

“It’s going to be really difficult for the government to constitutionally enact an all-out ban,” David Greene, director of civil liberties at the Electronic Frontier Foundation, told Yahoo Finance. “And even assuming they can show it… there is some evidence that the ban will actually help in some way.”

TikTok is a destination

TikTok has about 100 million US users. The app is most popular with younger users, with 67% of teens saying they use the app, according to a Pew Research Center survey. That’s 32% more than Meta’s Facebook and 62% more than Instagram.

The app’s popularity and rapid growth among youth have raised concerns in Washington and across the country that the app could be used as a tool to track and gather information about users, or to spread Chinese Communist Party propaganda.

TikTok denied claims it was a spokesperson for the Chinese leadership and opened offices in the US In June, the company announced that it had finished moving Americans’ user data from its servers to the cloud platform of Silicon Valley-based Oracle.

Still, US officials are not convinced. In December, Senator Marco Rubio (R-FL) passed a law to ban TikTok in the US, gaining the support of Republicans and Democrats in the House.

Adding to the drama, in late December, The New York Times reported that ByteDance employees had accessed data, including location information, of a handful of US users and two journalists. ByteDance said employees improperly accessed the data during an internal investigation into the leaks. ByteDance laid off employees involved in the matter.

Freedom of speech laws could prevent a total ban

This has pushed more states and even universities to ban TikTok. However, these restrictions only apply to use of the app on government and university devices and networks. In other words, there is nothing stopping employees and students from checking out the latest TikTok trend on their personal phones and networks.

President Joe Biden also opposed TikTok. The administration is negotiating with TikTok to dispel fears that China could misuse the app to learn about Americans or spread disinformation, while others are urging Biden to take administrative action. Still, that too is unlikely to pass.

MIAMI, FLORIDA - NOV 06: US Senator Marco Rubio (R-FL) speaks at a rally prior to former US President Donald Trump's arrival at the Miami-Dade Country Fair and Exposition in Miami, Florida, on November 6, 2022.  Rubio faces US Representative Val Demings (D-FL) for reelection in Tuesday's general election.  (Photo: Joe Raedle/Getty Images)

Senator Marco Rubio (R-FL) proposed a law to ban TikTok in the US (Photo by Joe Raedle/Getty Images)

According to Greene, if Congress or Biden bans TikTok, it will be challenged in the courts as a violation of Americans’ rights to free speech under the First Amendment. And in speaking cases, he explained, the courts will try to determine if Biden or Congress can come up with a less restrictive way to address his concerns without imposing an outright ban on all Americans.

“It will be subject to strict scrutiny of the First Amendment. And that will require the government to show, whether it’s a US government or a state or local government or whatever, that this is the least restrictive way to advance an important government interest,” Green said. “Total bans on things are almost never the least restrictive. “

Greene explained that the Supreme Court had previously backed out against social media bans on First Amendment grounds.

In Packagingham v. North Carolina, which challenged a North Carolina law that prohibited sex offenders from using social sites where convicted persons appeared, the court ruled that even a state’s interest in protecting minors from sex offenders was insufficient to detain them. the right to “speak” on these sites.

“To completely block access to social media prevents users from exercising their First Amendment rights legitimately. Even convicted criminals – and in some cases especially convicted criminals – can derive legitimate benefits from accessing this world of ideas, especially if they want to reform and lead a legal and rewarding life.

National security adds an extra problem

JS Nelson, a visiting scholar at the Harvard Negotiation Program, said one solution to avoid potential problems with the Supreme Court could be for lawmakers to ban TikTok based on national security concerns about China’s ability to spy on Americans through the app. Law School. But even this strategy is fraught with problems.

That is, passing a law would force members of Congress to disclose exactly how the government knew that China was using TikTok to gather information about Americans or otherwise influence its users.

“If you want to do this about some sort of compelling threat to national security, that’s not something Congress would want to publish and have all hearings about. This goes into a lot of very specific national intelligence data,” he explained.

The truth is that banning TikTok in the US is unlikely to happen anytime soon. So at least for now, trends, dances and skits will continue to arrive without delay.

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Got a tip? Email Daniel Howley at dhowley@yahoofinance.com. Follow him on Twitter: @DanielHowley.

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