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Tick-Tock for Tik Tok? The Minimally Consolatory Difference Between Domestic and International Surveillance

Published onApr 03, 2023
Tick-Tock for Tik Tok? The Minimally Consolatory Difference Between Domestic and International Surveillance

A nationwide ban on Tik Tok has recently been proposed by Senator Hawley and Congressman Buck. This move would extend President Biden’s ban of Tik Tok from federal employees’ devices, a move mirrored by most state governments, and numerous universities. The move may be understandable, considering the FBI’s claim that Tik Tok spies on Americans, including government workers. The facts that Tik Tok, an American company, admitted spying on reporters and that its Chinese parent company, ByteDance, is an extension of the Chinese Communist Party (CCP), further support the prohibition. Viewing these factors in concert, American lawmakers were naturally outraged at Tik Tok’s behavior.

When Americans merely share data with a private American entity, no constitutional implication arises, because, absent state action, constitutional constraints do not apply. Thus, Americans are willingly tracked, their data commodified, and their resignation to the practice encouraged–legally. However, when private entities work with the State using that same data, unconstitutional state action may arise.

The Fourth Amendment requires a warrant to be limited by sufficient particularity; a feature which most likely renders some modern search tactics, such as geofences, illegal. Further, considering the Foreign Intelligence Surveillance Court’s (FISC) tendency to rubberstamp spying on Americans en masse, the bleak realization that the Fourth Amendment lies in tatters looms large.

As a variation on these themes, the Hawley-Buck bill would address a third path to the extinction of privacy in the United States: its destruction by foreign actors. When data flows from an American company to its foreign parent, like Tik Tok, and then to an adversarial government, two executive orders govern. The more recent of the two was issued by President Biden and orders evaluations for carrying out the older one from President Trump. That antecedent executive order, EO 13873, prohibits any communications technology effectively controlled by an adversarial nation that poses appreciable risk to America security, economics, or safety.

Executive Order 13873 was drafted mostly in response to the perceived threat from Huawei equipment to American data security. The EO was also used to ban eight Chinese apps with the potential for spying. However, a federal court enjoined the Trump administration’s ban on Tik Tok, finding that it had overstepped its authority with respect to the International Emergency Economic Powers Act (IEEPA). While IEEPA permits the President to halt and forbid nearly any economic activity contrary to US security interests, the Trump administration’s treatment of the software’s source code as contraband triggered an exception. This exception to IEEPA, the Berman Amendment, sought to exclude informational exchange from IEEPA, ironically, so that people living under oppressive regimes can communicate with the free world.

On multiple levels, Tik Tok is a bastion of informational exchange. The app encourages users to ensnare their peers’ attention and incidentally encourages users to provide its affiliates with useful behavioral surplus data. At times, Tik Tok has collected the most user data of any social media platforms. A portion of that data consistently flows back to China where the CCP has access to all devices. Despite ByteDance denying any ties to the CCP, such ties would be atypical. Business entities in the People’s Republic of China must write the CCP into China's equivalent of articles of incorporation, even without which the CCP exercises actual, not nominal, control over Chinese businesses. So, while Tik Tok is an ideal tool for surveillance, the Trump administration’s argument was flawed in that it focused to an illegal extent on precisely what makes the app suspect. Simply reframing the argument to focus on Tik Tok as a business (as opposed to a channel of information) would be more likely to succeed.

Moreover, Biden has expressed reservations at a nation-wide ban. Part of that hesitance might involve the short-term economic pain of doing so. The American app generated over $11 billion dollars in advertising revenue in 2022. Those advertising on the site would have to migrate to another platform to try to fill the gap left by the app’s absence. The first amendment rights of an American business, its users in the U.S., and advertisers on the platform would all be under threat; even if the government were to deplatform the app legally via the IEEPA.

Unfortunately, Americans find themselves under surveillance from private actors, their own government, and adversarial foreign states. Barring Americans suddenly and collectively boycotting the app out of any sense of individual or group self-preservation, two unappealing choices present themselves: either we can (1) do nothing and strengthen a foreign adversary, or (2) the State can act and subvert our unalienable rights and the economy. The minimal quantum of solace in this mess is the somewhat increased likelihood of action, due to an adversarial state conducting the surveillance.

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