TikTok’s Ticking Clock of Uncertain Future on the Tightrope

There’s been all sorts of buzz with TikTok and how the potential ban in the US will affect many users. We also know that Canada also banned TikTok from all government official devices. What exactly is the big deal with TikTok and why are governments concerned with the app? Isn’t it just an app that promotes dancing and short videos? TikTok, with its vast user base exceeding 2 billion globally, stands at the crossroads of significant legal scrutiny and public discourse over the tiktok banned phenomenon, highlighting the complex interplay of privacy policies, data collection practices, and the broader implications for digital freedom and security. What is the legal basis and how are they going to enforce this legally? Let’s dive in!

Legal Precedent

We’ll talk about if there is anything the American Whitehouse is relying on first to justify this nationwide ban. The Protecting Americans from Foreign Adversary Controlled Applications Act was signed into law on April 24, 2024 as part of the National Security Act which has been revised significantly over the year 2023 since it was originally enacted in 1947 to reflect the evolving changes required for the US military and intelligence agencies. This new act provides a framework for the government to regulate applications deemed under foreign influence. This act alongside the RESTRICT Act (Restricting the Emergence of Security Threats that Risk Information and Communications Technology Act of 2023) would empower the US Department of Commerce to directly ban apps controlled by foreign adversaries, indicating a significant shift towards stringent regulatory measures on digital platforms. The RESTRICT Act was introduced to the senate on March 7, 2023; it is a bill that proposes to review and prohibit business transactions between people in the US and foreign adversaries if they pose “undue and unacceptable risk” to the national security of the United States or its citizens. It would give very broad powers to the US Department of Commerce to regulate technology owned or controlled by foreign adversaries. Therefore, the RESTRICT Act would extend beyond TikTok as it is not limited to only TikTok but any other application that may pose a threat from a foreign adversary. It is possible that WeChat owned by the Chinese company Tencent or other applications may be scrutinized as well.

Legal Arguments for Banning Tiktok

National Security Concerns

Recent legislative discussions have emphasized the potential national security risks associated with TikTok. Key concerns include the possibility that the Chinese government could manipulate TikTok’s recommendation algorithm to influence U.S. politics, control data collection on millions of users, or even inject malicious software into devices through the app.

It wouldn’t be the first-time social media was used to collect data and influence politics. Some may remember the Netflix documentary, “The Great Hack” that came out in 2019 which discussed Cambridge Analytica, a British consulting firm, previously owned by the SCL Group using the data of millions of people, particularly through Facebook without their knowledge or consent to strategically market political campaigns around the world.  

Data Privacy and the Risk of Foreign Surveillance

What data does TikTok collect? TikTok learns what you are watching, acknowledges how long you spend watching a video, what categories you are interested in and as a result fine tunes it’s algorithm for the main feed.

The data privacy issues with TikTok are particularly alarming to governments around the world given the app’s Chinese ownership. ByteDance, TikTok’s parent company, is not only obliged to adhere to Chinese laws that could compel it to share information with the government but also poses a risk of foreign surveillance. Reports have surfaced of ByteDance employees accessing non-public data of U.S. users, raising fears about the potential misuse of such information. Moreover, the FBI and other U.S. officials have repeatedly expressed concerns over ByteDance’s capability to share user data with China. ByteDance however has denied claims of sharing data with the Chinese government or being asked to. For now, it is a potential risk that the US government is trying to prevent.

Precedent History

The U.S. government has previously taken action against Chinese technology companies like Huawei, citing national security grounds. These actions establish a legal precedent for potentially banning TikTok. However, there is limited existing case law to support such a ban.

Efforts by the U.S. Congress and different administrations to address security risks through legislation and executive orders have had varying levels of success. The introduction of the RESTRICT Act and other legislative measures aimed at TikTok highlight the government’s commitment to regulating or prohibiting applications controlled by foreign adversaries.

The Case of Lamont v. Postmaster General 381 U.S. 301 (1965) was a United States Supreme court case that challenged a federal law requiring the Postmaster General to detail foreign mailings of “communist political propaganda and deliver them upon the addressee’s request. The question in that case was on section 305(a) of the Postal Service and Federal Employees Salary Act of 1962. The plaintiff, Corliss Lamon was a US citizen who sued after being notified he had received “communist political propaganda” from abroad. The Supreme court looked at whether this law violated the first amendment rights of US citizens, specifically:

1. Did the law infringe upon freedom of speech?
2. Did it violate the right to receive information?
3. Was the government’s action an unconstitutional form of prior restraint?

The court ultimately ruled that section 305(a) was unconstitutional and violated first amendment rights. The key points of Lamont include that the First Amendment protects the right to receive information, not just the right to send it, the law was seen as imposing an affirmative obligation on addressees to request delivery, which the Court deemed an unconstitutional limitation on free speech and third, the court found that the law would have a chilling effect on the exercise of the First Amendment rights.

I imagine some of the issues in this 1965 case law precedent have been brought up to challenge the Tiktok ban. However, the concerns around TikTok are different of course with technology gathering personal information and the speed of technology today cannot be compared with snail mail.

Other Enforceability and Challenges

Technical Feasibility of Enforcing a Ban

However, even with a ban, enforcing it may have challenges, as the RESTRICT act proposes to grant the government authority to ban not just apps but entire websites, shifting enforcement responsibility to the US or offshore internet hosting services and app stores. However, some may still try to get around it with VPNs and other methods.

As we know now, the TikTok ban went into effect on January 19, 2025. TikTok however quickly came back online but it was taken off app stores in the US. Despite Donald Trump wanting to keep TikTok, it was not returned to the app store right away. Donald Trump issued an executive order instructing the Attorney General not to take any action to enforce the Act for a period of 75 days on January 20, 2025 but on February 13, 2025, the app was listed again in the App Store and Google Play. There still may be a ban still, as it is on the books for US politicians and business leaders. There are still discussions about whether TikTok in the US can be purchased by an American company or individual.

Potential Legal Challenges and Counterarguments

The enforceability of a TikTok ban is fraught with legal complexities. As noted above, historical precedents such as the case of Lamont may suggest that the U.S. Supreme Court has struck down similar restrictions on foreign propaganda based on First Amendment grounds, emphasizing the importance of “uninhibited, robust, and wide-open” debate and discussion. However, it will also depend on how much weight is given on the security risks and threats and privacy concerns. It would also seem that many of the political leaders are hoping that TikTok will ultimately sell to an American company to get around this.  

International Response and Implications

The international response to a TikTok ban could vary dramatically. Beijing might block any sale of TikTok, citing national security and fair competition, which could exacerbate global tensions regarding technology acquisitions and foreign investment policies. Alternatively, ByteDance could face domestic backlash if it agrees to sell TikTok without its core algorithms, as this would be seen as surrendering Chinese intellectual property. These scenarios illustrate the complex interplay between national interests and global digital governance, highlighting the potential for significant international implications following the enforcement of a TikTok ban.

Potential TikTok Ban in Canada

There are also other countries that have considered some form of ban against Tiktok such as Canada’s ban on government officials having TikTok. The general public can access TikTok currently but not government officials anymore due to similar concerns that the US has. Would it be possible in Canada, and are there any legal precedents that would allow for the Canadian government to ban TikTok or other social media platforms one day?

TikTok and other social media platforms would be considered a form of telecommunication as it would be a service associated with the internet, and as such fall under the federal government jurisdiction according to S. 92(10)(a) of the Constitution Act, 1867. The Canadian Radio-Television and Telecommunications Commission (CRTC) has exclusive regulatory jurisdiction over broadcasting and telecommunication services in Canada. The CRTC requires social media services to register with the CRTC. The CRTC enforces acts such as the Online News Act which ensures that social media where news is disseminated compensates the news outlets. As a result of the government passing Bill C-18 which put into force the Online News Act, social media platforms including Facebook decided to block the sharing of Canadian news content to avoid the obligations imposed by this law. This is why you can no longer share news articles from places such as CTV, Toronto Star, etc on Facebook. If the government was interested in banning TikTok for Canadians, they would likely have to work with the CRTC to work.  

Currently Canada does not have any equivalent law on the books to the RESTRICT Act or the Protecting Americans from Foreign Adversary Controlled Applications Act in the US. However, the Canadian government has been considering various measures to address national security concerns related to foreign-controlled applications and technology. This includes ongoing discussions about enhancing cybersecurity and protecting critical infrastructure, as seen with initiatives like Bill C-26. However Bill C-26 primarily focuses on enhancing the security of critical cyber security systems and does not specifically address the restriction of downloading applications by Canadians. It aims to protect critical infrastructure by requiring operators to establish cybersecurity measures and report incidents. While it addresses cybersecurity threats, it does not explicitly provide for the banning or restriction of applications based on national security or privacy concerns. However, the government may consider other legislative or regulatory measures to address such concerns separately.

How did the government ban Tiktok for government officials? The Canadian government banned TikTok from government-issued devices through a directive issued by the Treasury Board of Canada Secretariat. This decision was based on concerns about privacy and security risks associated with the app, particularly regarding data protection and potential foreign interference. The directive applies to all government officials and employees, prohibiting the use of TikTok on devices provided by the government for official use.

Conclusion

TikTok’s future in the United States is still uncertain. As we’ve explored the complexities surrounding the TikTok ban in the United States and the potential for similar action in Canada, it’s clear that this issue extends far beyond a simple social media platform. The situation raises critical questions about data privacy, national security, and the delicate balance between government regulation and personal freedom in the digital age. While the outcome remains uncertain, it’s crucial to approach this topic with caution. The decisions made by governments regarding TikTok could set precedents that ripple through the entire tech industry, potentially reshaping our digital landscape for years to come.

Let’s ponder this thought-provoking question: In an era where our personal data is increasingly valuable and vulnerable, how do we strike the right balance between enjoying innovative technologies and protecting our digital sovereignty?

The answer to this question may well shape the future of not just TikTok, but our entire digital experience. Consider this: If governments can ban popular apps based on their country of origin, where do we draw the line? This question becomes increasingly relevant in our interconnected world, where digital borders are often blurred.

What’s your take on the TikTok ban? Do you believe it’s a necessary measure for national security, or do you see it as an overreach of government power? Share your thoughts in the comments below.

Disclaimer: This post is for informational purposes only and does not constitute legal advice. I am not responsible for any damages resulted from using information in this article. Please consult a lawyer for advice on your unique circumstances.