he United States after navigating a complex legislative process has imposed a nationwide ban on TikTok, a popular social media application that allows users to create, share and discover short videos. This final decision following a signature on the law by President Biden, came after heavy debates that had been taking place for months. TikTok was launched by a Chinese company, ByteDance, in September 2016 under the name Douyin for the Chinese market. The international version, known as TikTok, was launched in September 2017. The app saw a significant increase in its global user base after merging with the American app Musical.ly in August 2018. Since its origin, TikTok has been at the epicentre of regulatory scrutiny, with several countries expressing concerns over national security due to its data handling practices. This has led to discussions about and legislations regarding banning the app in countries like the United States and India. The latter enforced a ban some time ago; the former has done so recently.

In March 2024, the US House of Representatives passed a bill known as Protecting Americans from Foreign Adversary Controlled Applications Act. This bill would require ByteDance to divest its US operations within six months or face a ban on the app from US app stores. The Senate recently passed this bill and President Biden has signed it into law.

The push for a TikTok ban stems from concerns over national security, specifically the potential risk that user data could be accessed by the Chinese government using ByteDance’s ties to China. These concerns are not limited to TikTok; other Chinese apps have also been scrutinised over similar concerns. For instance, the Chinese owners of dating app Grindr were previously forced to sell their stakes over national security fears.

Policymakers in Washington have voiced apprehensions regarding the security and privacy of American data, alleging that software applications owned by China pose a threat. They contend that sensitive information from the United States could potentially fall into the hands of the Chinese government, given the regulations requiring Chinese companies to collaborate with intelligence services. Enacted in 2021, the Personal Information Protection Law was China’s inaugural all-encompassing legislation concerning privacy. It imposed more stringent compliance obligations on prominent online platforms, including the need to establish an autonomous entity to oversee their efforts in safeguarding privacy. However, pre-existing laws such as the Chinese National Intelligence Law (2017) continue to obligate all organisations and citizens to “support, assist, and cooperate with state intelligence work” as per its Article 7. Similarly, the Cybersecurity Law (2017) requires network operators in China to store select data within China and allows Chinese authorities to conduct spot-checks on a company’s network operations. It also mandates that operators provide technical support to the government for matters relating to national security and criminal investigations.

This has been interpreted by many outside China to mean that Chinese companies could be compelled to share data with the government if it is deemed necessary for national security reasons. Are Washington’s concerns, thus, justified with regards to the manner in which Beijing has implemented privacy legislation? The obligation of Chinese corporations to disclose information to intelligence services is widely recognised. Despite the law, TikTok has consistently denied unsafe handling of user data. There are significant constitutional and political challenges to the ban. Debates regarding the First Amendment and other legal considerations are currently going on and could impact the implementation of such a ban.

Intelligence officials as well as members of both the Republican and Democratic parties in US have expressed concern that Chinese authorities may order ByteDance to either pass over American user data or suppress or promote TikTok content that serves their interests. TikTok has stated that it has not disclosed user information from the United States to Chinese authorities and has refuted claims that it could be used by the Chinese government.

TikTok has not disclosed any evidence to the American public indicating that the Chinese government obtained US user data or altered the company’s popular algorithm, which determines what Americans see. The organisation says there are solid grounds for optimism regarding the potential success of a legal challenge, given its track record of favourable outcomes in prior legal disputes concerning its activities in the United States. For instance, a federal judge in November stayed a Montana law that would have prohibited the use of TikTok in the state.

In 2020, federal courts had stayed an executive order to ban TikTok issued by then-President Donald Trump after a lawsuit was filed by the company to challenge the order’s infringement on free expression and due process rights. An agreement mediated by his administration would have authorised Oracle and Walmart, two major American corporations, to acquire a substantial stake in TikTok. One of the several factors that prevented the transaction from proceeding was China’s implementation of more stringent export regulations on its technology suppliers.

On the other hand, many US states have already taken measures against TikTok, banning its use on government devices. At least 34 states have such bans as of April 2023. However, these bans are strictly for state government agencies and their employees, and do not extend to private civilian use of the app.

In addition to the security tensions and privacy concerns, critics have also argued that banning TikTok might infringe on the First Amendment rights of users by limiting a platform many use for expression, communication and even business. The First Amendment protects free speech and social media platforms have become modern public squares where individuals exercise this right.

Legal challenges to similar bans have cited the First Amendment, asserting that the government must show a compelling interest that is narrowly tailored to justify such restrictions. Courts often apply a strict scrutiny test to determine if such bans are justified, requiring that government actions must be the least restrictive means to achieve a compelling governmental interest.

On the other hand, the TikTok divest-or-ban law’s proponents contend that it does not actually constitute a “ban” and that it doesn’t impede free speech. The only prerequisite is that the app must be held by a business that isn’t ruled by a hostile foreign government. Supporters cite the 2020 sale of dating app Grindr by Chinese gaming business Beijing Kunlun Tech Co. to a group of American investors as a precedent; the US government compelled the purchase due to worries about user privacy.

In cases like the TikTok ban, the tension between national security interests and individual free speech rights becomes particularly evident. A potential broader ban on TikTok remains a topic of intense debate and legal scrutiny. The outcome will likely hinge on further legislative actions.

The writer is an advocate of the high court, a founding partner at LexMercatoria and a visiting teacher at Bahria University’s Law Department. She can be reached at minahil.ali12@yahoo.com