TikTok and the Future of Digital Privacy
Two ongoing lawsuits involving TikTok pose questions about the nexus of emerging technologies and freedom of speech, consumer protection, and national security. TikTok is a ubiquitous social media application with over 170 million users in the United States.[1] ByteDance, the company that owns TikTok, is a Chinese technology company headquartered in Beijing.[2] Like other prominent social media apps, TikTok collects user data to power its predictive algorithm to enhance and increase user engagement by curating video content informed by users’ preferences, demographics, and other variables including what types of videos users watch and for how long they watch them.[3] The app allows users to upload videos, allowing content creators to monetize their content by developing and maintaining subscribers that regularly follow their content.[4]
In April 2024, President Biden signed an omnibus bill into law that included the “Protecting Americans from Foreign Adversary Controlled Applications Act” and the “Protecting Americans’ Data from Foreign Adversaries Act of 2024.”[5] In effect, the new law gives TikTok until January 2025 to divest itself from ByteDance or lose access to users in the United States. [6] It also bans internet service providers from supporting the app with web-hosting services and prevent app stores, like those run by Google and Apple, from listing the app.[7] This would be the first time the United States has banned a social media platform.[8]
In May 2024, TikTok, its parent company ByteDance, and content creators unsuccessfully sought an injunction against the law.[9] On appeal before the District of Columbia Court of Appeals, the social media company argued that the ban is unconstitutional for violating the company’s First Amendment rights.[10] The Department of Justice argued that the ban is valid on national security grounds because the app collects personal data from millions of Americans, which would leave U.S.-based users of the app vulnerable to surveillance and manipulation by the Chinese government.[11] By exerting influence over the app’s Beijing-based owners, the Department of Justice argued that the Chinese government exerts a malign influence on the American public by surreptitiously disseminating divisive, false, and misleading content to millions of Americans.[12] TikTok strenuously denies the allegation that it has ever shared users’ information with the Chinese government.[13]
The three-justice panel, who heard oral arguments on Monday, September 16, 2024, appeared unsympathetic to TikTok and the content creators’ First Amendment arguments.[14] A decision is expected by December 6, 2024, as all parties seek to resolve the issue before the ban comes into effect in the new year.[15]
Free speech advocates and constitutional scholars troubled by the ban are joined by privacy experts who claim that what American consumers really need stronger digital privacy regulations.[16] This proposition is being tested in another lawsuit, filed in August 2024 by the United States against TikTok and ByteDance, on referral from the Federal Trade Commission (FTC).[17] The government alleges that TikTok has violated the Children’s Online Privacy Protection Act of 1998 (“COPPA”) and Children’s Online Privacy Protection Rule (“COPPA Rule”) by allowing children under 13 years of age to have TikTok accounts without parental consent or knowledge, collecting data from those underage users, and refusing to parents’ requests that TikTok delete their children’s data.[18]
This builds on a successful action against Music.ly in 2019 for violating the COPPA rule.[19] Music.ly, which was purchased by ByteDance in 2017 and merged into TikTok the following year, received a $5.7 million civil penalty, a permanent injunction against allowing minors 13 and younger from creating accounts, an obligation to delete all “age-unknown” accounts on the platform, and to retain certain records related to compliance with these obligations.[20]
Both cases highlight the challenges related to ubiquitous, rapidly advancing technology and the legal approaches to enhancing digital privacy. While supporters of the sell-or-ban approach in this case lean on the national security implications of insufficient data protection, critics like Senator Edward Markey point out that American companies routinely collect and utilize data just like TikTok.[21] United States v. ByteDance shows that agency regulation can play a role in imposing guardrails on social media platforms absent legislation that can keep pace with technological development, but penalties of several millions of dollars may not be sufficient deterrence for companies with annual revenue in the billions.[22]
The TikTok litigation is an opportunity for the courts to address open questions about the convergence of national security, freedom of expression, and technology. The ultimate decision from the D.C. Court of Appeals on December 6 may be a bellwether for data privacy efforts going forward.
Footnotes
