SCOTUS’ unsurprising decision on TikTok lays bare our hypocrisy about data privacy
We shouldn’t have been especially surprised that the Supreme Court voted unanimously to uphold the TikTok ban. After all, we have a long legal tradition when it comes to banning the foreign ownership of media companies.
Lest we forget, Rupert Murdoch was able to take his first steps in launching the Fox News Channel only by becoming an American citizen. The Australian media mogul took the oath in 1985 so he could purchase seven local television stations owned by Metromedia. FCC rules barred non-citizens from owning more than 20% of a U.S. broadcast entity.
Murdoch’s acquisition of Metromedia meant that he briefly owned WCVB-TV (Channel 5). Since Murdoch also owned the Boston Herald and the FCC forbade cross-ownership of a TV station and newspaper in the same market, Murdoch flipped WCVB to Hearst, which has owned it ever since. (This is unrelated to Murdoch’s failed attempt a few years later to hold on to Boston’s WFXT-Channel 25 while keeping the Herald. In that case, he ended up selling Channel 25 and retaining the Herald, though he later sold that, too.)
FCC jurisdiction applies almost exclusively to the dying universe of broadcast television and radio. The TikTok ban was approved by an act of Congress, passed by overwhelming bipartisan majorities and signed into law by President Biden. Donald Trump has indicated that he wants to work out a deal so TikTok can remain up and running in the U.S., and perhaps he will. So this entire episode may turn out to be a footnote.
What’s notable about the Supreme Court decision is that the justices were not impressed with the government’s contention that TikTok could be used to distributed propaganda at the behest of the Chinese government. That’s as it should be. According to Amy Howe’s account of the decision, republished by SCOTUSblog, Justice Neil Gorsuch’s concurrence underscored that the issue was foreign ownership, not free speech.
Gorsuch, Howe notes, “emphasized that the court was correct in not ‘endorsing the government’s asserted interest in preventing “the covert manipulation of content”’ to justify the TikTok ban. ‘One man’s “covert content manipulation,”’ he observed, ‘is another’s “editorial discretion.”’”
The real problem with foreign ownership is that the Chinese government could demand that TikTok (I’m not going to get into the complex arrangement between TikTok and its parent company, ByteDance) turn over the massive amounts of user data that it hoovers up in order to fine-tune its algorithm and to sell you stuff. Of course, American-owned platforms do the same thing, and you might think there’s not a great deal of moral difference between Xi Jinping or Mark Zuckerberg (or Co-President-Elect Elon Musk) having access to your data. And you might even be right. But the legal distinction strikes me as fairly obvious.
Is there hypocrisy at work here? You bet, because the U.S. government has long claimed the right to access user data from American-based platforms in the name of national security. As Andrew K. Woods writes for Lawfare:
The Court noted: “TikTok Ltd. is subject to Chinese laws that require it to ‘assist or cooperate’ with the Chinese Government’s ‘intelligence work’ and to ensure that the Chinese Government has ‘the power to access and control private data’ the company holds.”
The Court could have written a nearly identical sentence about Meta or Google, vis-à-vis American law, like this: “Meta is subject to American law that requires it to assist or cooperate with the American government’s intelligence work and to ensure that the American government has the power to access and control private data the company holds.”
American firms are subject to American laws — like the Stored Communications Act, especially as modified by the CLOUD Act, and intelligence laws like the Foreign Intelligence Surveillance Act — that give the U.S. government legal means to access customer data, especially foreign customer data, for national security and intelligence purposes.
The ban takes effect Sunday, and the Biden White House has said it’s not going to make any efforts to enforce it with Trump taking office the next day. Trump was originally all in favor of the ban; then one of his billionaire donors urged him to change his mind. It didn’t hurt that Trump’s TikTok account turned out to be popular with his supporters.
So it seems like the most likely outcome is that Trump announces an extension while trying to work out some sort of settlement.