Biden Signs TikTok Ban Bill; Expect A Lawsuit By The Time You Finish Reading This Article

Get your dance moves on now, as TikTok may be going away. Okay, it’s not going away that quickly and quite possibly isn’t going away at all, but President Biden signed the bill this morning that requires ByteDance to divest itself from TikTok, or have the app banned from the Apple and Google app stores.

The law gives ByteDance 12 months to divest, but in all likelihood sometime today or tomorrow, TikTok will file a well-prepared lawsuit with high-priced lawyers challenging the law on a variety of different grounds, including the First Amendment.

As you’ve probably heard, the bill was tacked on to a foreign aid funding bill, and there was no way the President wasn’t going to sign that bill. But even as ridiculous as it is to tack on a TikTok ban to foreign spending support, Biden had made it clear he supported the TikTok ban anyway. Still, it does seem notable that, when signing the bill, Biden didn’t even mention the TikTok ban in his remarks.

We’ve discussed this a few times before, but the move to ban TikTok is particularly stupid. It demonstrates American hypocrisy regarding its advocacy for an open internet. It goes against basic First Amendment principles. It overreacts to a basic moral panic. And it does fuck all to stop the actual threats that people justifying the ban talk about (surveillance and manipulation/propaganda).

It’s particularly stupid to do this now, just as Congress was finally willing to explore a comprehensive privacy bill.

The NY Times has a big article about the “behind the scenes negotiations” that resulted in this bill that (bizarrely) makes it sound like the TikTok bill is an example of Congress working well:

For nearly a year, lawmakers and some of their aides worked to write a version of the bill, concealing their efforts to avoid setting off TikTok’s lobbying might. To bulletproof the bill from expected legal challenges and persuade uncertain lawmakers, the group worked with the Justice Department and White House.

And the last stage — a race to the president’s desk that led some aides to nickname the bill the “Thunder Run” — played out in seven weeks from when it was publicly introduced, remarkably fast for Washington.

This leaves out some fairly important elements, including powerful lobbying by companies like Meta (who were clearly threatened by TikTok) to spread a moral panic about the app. It also leaves out the massive financial conflicts of many of the lawmakers who pushed for this bill.

Either way, the bill is going to get challenged and quickly. Previous attempts to ban TikTok (one by former President Trump and one by Montana) were both rejected as violations of the First Amendment.

While this bill is written more carefully to try to avoid that fate, it’s all a smokescreen, as the underlying concerns still very much implicate the First Amendment. The only real question is whether or not the outrage and moral panic about “CHINA CONTROLS THIS APP!!!!” will lead judges to make exceptions in this case.

The bill still has fundamental free speech problems. First of all, banning users from accessing content raises serious First Amendment questions. Second, requiring an app store to stop offering an app raises different First Amendment questions. Yes, there are cases when the US can force divestiture, but the remedies in this bill raise serious concerns and would create a very problematic precedent allowing future Presidents to effectively ban apps they dislike or possibly force their sale to “friends.” And that’s not even getting into what it does in terms of justifying censorship and app banning elsewhere.