tick-tock for tiktok

who's afraid of the big bad PRC?

The Los Angeles wildfires have still been spreading since Tuesday night. They have burned tens of thousands of acres and destroyed numerous homes, third places, and safe spaces. If you have the means, please consider donating to charities providing relief and recovery to those impacted by the wildfires. (And if you hate the paradox of choice, I donated to the Los Angeles Fire Department Foundation, which has a 96% on Charity Navigator.)

The Supreme Court heard oral arguments on Friday in TikTok, Inc. v. Garland, AKA the TikTok ban case. From everything I heard—and journalists seem to agree—TikTok will likely be banned come Sunday.¹

The judges appeared deeply troubled by the prospect of a U.S. company being partially owned by a Chinese company. Justice Kavanaugh wondered if data gleaned from the app could eventually “develop spies, turn people, blackmail people” when current users get older and work in jobs handling sensitive information, like national security agencies or the military. Justice Jackson suggested the TikTok ban was more about banning association—the same way Americans can be barred from associating with foreign terrorist groups. (Is China a threat arising to the level of a foreign terrorist group? Hmm…)

The case is a fascinating interplay of prioritization. On one hand, laws restricting speech are subject to higher levels of scrutiny—more skepticism—from judges. On the other, the judiciary defers to the legislative and executive branches of the government on matters of national security. What happens when you mash a rock (the First Amendment) and a hard place (national security) together? Does the rock crumble, or does it pierce through the hard place?

I’m going to gloss over the legalese of it all—the technical legal debate here is whether the regulation is content-based or content-neutral, which impacts the level of scrutiny (i.e., skepticism) the judges examine the regulation using—because I’m much more interested in the fact that both the D.C. Circuit and the Supreme Court are receptive to banning TikTok on the grounds of hypothetical harms.

The D.C. Circuit—which upheld the TikTok ban in December—interestingly acknowledges many of TikTok’s arguments. There are less restrictive proposals out there—like reporting requirements or appointing monitors—which could address the data-sharing and national security concerns that Congress has. There isn’t specific evidence of content manipulation by the PRC.

But even with those truths, the Government does not trust TikTok. The Government does not trust China. The crux of the decision is: no matter what promises TikTok makes or safeguards TikTok puts into place, the Government cannot trust TikTok absent divestiture.² And the judiciary must respect that. What else can you do when trust is so irretrievably broken?

Now for my hot take: this legislative and judicial comfort with pre-empting the hypothetical harms wrought by TikTok is tinged just ever so slightly with sinophobia. I’m not saying the fears aren’t warranted—they very well could be—but there’s no evidence yet. There’s no proof yet.

And yet—the hypothetical harm is somehow so disastrous, so troubling, that it must be nipped in the bud. We must shoot before we ourselves are scratched.

This isn’t a new posture for the U.S. In 1882, the Chinese Exclusion Act prohibited Chinese laborers from immigrating to the U.S. In 1942, Executive Order 9066 authorized the internment of people of Japanese descent living in the U.S. And let’s not forget that the Supreme Court even upheld the constitutionality of Japanese internment in Korematsu v. United States. The mere fear of the Other has routinely led to exclusionary laws.

Japanese internment is a particularly striking example of how hypothetical fears manifest into law. Approximately 120,000 Japanese Americans—mostly U.S. citizens—were moved into concentration camps. The number is especially appalling considering there were only about 127,000 Japanese Americans in the continental U.S. at the time. The number is even more appalling when you consider that only thousands of German Americans and Italian Americans were detained, even though their U.S. population was in the millions.³

The rationale behind internment? Disloyalty during a time of war. The fear was unfounded: a 1983 report commissioned under President Jimmy Carter found little evidence of Japanese American disloyalty.

But between the two potential evils faced by the Government—culling individual civil liberties or weakening the U.S. during wartime—it’s obvious to me that the Government would always choose to sacrifice individual liberties.

It’s a PR issue, really. Incarcerating Japanese Americans—a minority group, immigrants from a “foreign adversary” at the time—makes some people mad, but the anger is nothing compared to what would happen if enough Japanese Americans actually turned out to be spies. Just look at the anti-immigrant sentiment around us right now. Despite studies showing that immigrants are less likely than U.S.-born citizens to be arrested and incarcerated, Gallup polls found that 47% of Americans believed immigrants worsened crime in the U.S. And wrongdoing by immigrants receive outsize amplification in media and on social media. People are afraid right now—about money, about food, about the climate, about war, about their very lives—making foreign people and foreign companies convenient targets of ire.

And therein lies the real reason the TikTok ban saddens me. It’s a reminder that we live in an age of fear, where the hypothetical harms of something justify the complete removal of the thing (or human being). Fear is one of the best motivators—it gets us to open our wallets, wait at the polls—but at what cost?

We won’t know until years from now whether this was the right move. And it very well could be—algorithmic dangers are compounded in societies with poor media and data literacy. That’s how the rock crumbles. I wish I could snap my fingers and transform the sad state of education and compassion in the U.S. Then perhaps TikTok and the threat of content manipulation wouldn’t be as large as Congress and the Supreme Court believes it to be today. But for the next six days, you can find me scrolling my FYP and dreaming about the opposite of fear.⬥

1. And by “banned,” I mean the app stores will stop supporting the app. It will still work for a while, à la Flappy Bird, but will deteriorate over time. I guess dementia doesn’t spare apps.

2. TikTok, Inc. v. Garland at 37, 51-52.

3. Even among these thousands, most were non-citizens.