The Ticking Clock on Legally Restricting TikTok

Amidst the growing concern over TikTok’s massive availability in the United States, Congress now is ramping up its public scrutiny of that company, which is owned by China’s ByteDance. That foreign ownership has raised serious concerns regarding whether the company might constitute a national security threat that warrants an outright nationwide ban.

Such a ban, which has been advocated by Rep. Cathy McMorris Rodgers (R-Wash.), chair of the House Energy and Commerce Committee, raises First Amendment concerns that the government may not be able to justify under the constitutional strict scrutiny test of the Supreme Court that likely would apply in this case. It is unclear, and at this point unlikely, that a sufficient showing could be made to convince a federal court that the gravity of the national security risk in practice would justify restricting the ability of 150 million Americans to use the app for sending and receiving information.

The Biden Administration favors a less drastic approach – namely, a forced divestiture of all TikTok assets to a U.S. company as a condition of allowing its continued operations. That remedy also may be difficult to achieve as long as China maintains its refusal to allow such a sale of a valuable Chinese company, which would be perceived there as a concession of weakness made in the intense battle for geopolitical supremacy.

This means that legislators may instead focus on restricting TikTok’s operations in the United States with a separate rationale. As Rep. Frank Pallone (D-N.J.) noted during the recent House committee hearing where TikTok CEO Shou Zi Chew testified, “Research has found that TikTok’s algorithms recommend videos to teens that create or exacerbate feelings of emotional distress, including videos promoting suicide, self-harm and eating disorders.” Across the political aisle, Rep. Gus Bilirakis (R-Fla.) also criticized TikTok’s content moderation policies for kids. “Your technology is literally leading to death,” he pointedly told Chew.

Consequently, increasing attention will be focused on developing bipartisan legislation aimed at a subset of TikTok users who have propelled it to such astonishing growth during the past few years – teenagers and their younger siblings. But as the recent enactment of a new state law in Utah suggests, it may be equally difficult to develop a workable scheme that would restrict TikTok’s domestic influence and power.

This month, Republican Utah Governor Spencer Cox signed a new law restricting social media use, including TikTok, that Congress may consider to be a template as it crafts federal legislation. Meanwhile, individual states might act first by passing their own laws that impose restrictions within their borders, especially if no federal legislation actually moves ahead. These routes may prove to be problematical, as well.

For example, in March 2022, Governor Cox signed into law the Utah Consumer Privacy Act (UCPA). As a digital data provider, TikTok, Instagram, and virtually all other social media are covered by the UCPA, since they (1) conduct business in Utah or produce a product or service targeted to Utah residents; (2) have annual revenue of $25 million or more; and (3) process the personal data of 100,000 or more Utah residents.

In turn, the UCPA’s protections extend to any Utah resident acting within an individual or household context. Utah consumers now have the right to access their personal data, delete their personal data, obtain a copy of their personal data in a portable manner, opt out of the “sale” of their personal data, and opt out of “targeted advertising” (each term is defined under the law). These rights are limited, however, to those above age 13; anyone who does not meet this threshold would be defined as a “known child,” and the more stringent requirements of the federal Children’s Online Protection Act (COPA) would be applicable instead.

This age-based line of demarcation in the UCPA clearly conflicts both with the new Utah social media law, which is scheduled to take effect in March 2024, and with COPA, which also defines children as those under the age of 13. It also raises questions regarding inconsistencies with other state and federal laws that establish age-based criteria, such as obtaining a driver’s license (age 16 in Utah) or serving in any branch of the U.S. military (allowable at age 17).

It seems anomalous that someone in Utah would be allowed to traverse highways or battlefields, but now would be blocked from accessing their social media accounts from 10:30 p.m. to 6:30 a.m. every day. And more generally, they only would be able to access social media at all if their parents consented to any use after the social media provider had verified that they were under 18 years old.

The Utah approach is destined to be challenged on First Amendment grounds, and may not survive on that basis. In any event, this new law should not serve as a model for Congress, which continues to contemplate separate privacy legislation that already has received bipartisan support in the House and Senate. Individual states (including California, Colorado, Virginia, and Iowa with their own privacy laws now enacted) also may find that, like Utah, age-based restrictions conflict with their own current or pending digital privacy laws.

Should TikTok be restricted in some way? There clearly seems to be a broad growing sentiment for government to do something – and fast. But as the old saying goes, “If you don’t know where you’re going, any road will take you there.”

Stuart N. Brotman is a Distinguished Fellow at The Media Institute. He is the Alvin and Sally Beaman Professor of Journalism and Electronic Media at the University of Tennessee, Knoxville, and the author of The First Amendment Lives On (2022) and Privacy’s Perfect Storm: Digital Policy for Post-Pandemic Times (2020).