First Amendment Laws and the Silicon Valley: Project Texas vs The Chinese Government on a Privacy-Violating TikTok App

“The First Amendment protects our ability to speak, to associate freely, and to receive information, both from others here in the United States and from people overseas,” said Patrick Toomey with the ACLU’s National Security Project. “TikTok is host to an enormous global community that the app’s creators and users in the United States could not readily reach and engage with elsewhere online.”

The case was filed in the federal Court of Appeals in DC, which has jurisdiction over the challenges to the forced divest law. The creators want the court to stop the law from being enforced.

Evelyn Douek, a professor at Stanford Law School who focuses on online speech, said First Amendment legal precedents make clear that the government cannot shut down speech based on a hypothetical or potential threat to national security.

If there is a government reason for banning TikTok, then speech can only be stifled if it is as narrow as possible.

TikTok officials presented Project Texas to national security officials in Washington but the plan failed to assuage critics, as it did not include a complete severing of TikTok from ByteDance.

Calo is referring to a plan TikTok says it has spent $2 billion on that would, with the help of Austin-based tech company Oracle, create a firewall between U.S. user data and the app’s Beijing-based parent company.

The Chinese Community Party has not asked for any data from TikTok, despite the laws in China requiring it to do so. While Byte Dance staff have been granted access to U.S. data, there is no evidence that the Chinese government ever tried to get user data.

TikTok is a gun aimed at Americans’ heads: “The Chinese Communists are aiming at the core of American democracy“

According to Douglas Laycock, a constitutional law expert at University of Virginia, the government will likely try to make the case that this is a “content neutral” regulation of business owned by a foreign adversary that poses a national security threat to the US.

While the government will try to make the legal case about security issues rather than free speech, it will be difficult to avoid the constitutional implications, experts said.

“My reaction to this briefing is that TikTok is a gun aimed at Americans’ heads,” Sen. Richard Blumenthal, D-Conn., told reporters after the session, adding, “The Chinese Communists are weaponizing information that they are constantly, surreptitiously collecting from 170 million Americans and potentially aiming that information, using it through algorithms, at the core of American democracy.”

When asked what is the most important unknown in the case, Jameel Jaffer, who leads the Knight First Amendment Institute at Columbia University, said: “The government’s purported secret evidence.”