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FILE PHOTO: General view shows the United States Supreme Court, in Washington, U.S., February 8, 2024.
Can the government dictate what’s on Facebook?
The Supreme Court heard arguments on Monday from groups representing major social media platforms which argue that new laws in Florida and Texas that restrict their ability to deplatform users are unconstitutional. It’s a big test for how free speech is interpreted when it comes to private technology companies that have immense reach as platforms for information and debate.
Supporters of the states’ laws originally framed them as measures meant to stop the platforms from unfairly singling out conservatives for censorship – for example when X (then Twitter) booted President Donald Trump for his tweets during January 6.
What do the states’ laws say?
The Florida law prevents social media platforms from banning any candidates for public office, while the Texas one bans removing any content because of a user’s viewpoint. As the 5th Circuit Court of Appeals put it, Florida “prohibits all censorship of some speakers,” while Texas “prohibits some censorship of all speakers.”
Social media platforms say the First Amendment protects them either way, and that they aren't required to transmit everyone’s messages, like a telephone company which is viewed as a public utility. Supporters of the laws say the platforms are essentially a town square now, and the government has an interest in keeping discourse totally open – in other words, more like a phone company than a newspaper.
What does the court think?
The justices seemed broadly skeptical of the Florida and Texas laws during oral arguments. As Chief Justice John Roberts pointed out, the First Amendment doesn’t empower the state to force private companies to platform every viewpoint.
The justices look likely to send the case back down to a lower court for further litigation, which would keep the status quo for now, but if they choose to rule, we could be waiting until June.Picture of the Tik Tok symbol over the US Capitol Building.
TikTok "boom"! Could the US ban the app?
As a person over 40, the first thing I did when I heard about a new bipartisan US bill that could lead to a ban of TikTok was: call my niece Valeria in Miami.
She’s a high school sophomore who spends a lot of time on TikTok.
“People are hypnotized by it,” she told me, estimating she spends up to two hours a day on the app, even when she deliberately erases it from her phone during school hours. And during the dog days of summer, she says, some of her friends will tap in for more than eight hours daily.
On this particular day, the two top vids in her feed were: a physics teacher driving a homemade rocket-powered scooter through his classroom to the soundtrack of rapper Ace Hood‘s hit record “I woke up in a Bugatti,” and a mesmerizing vid of a woman applying fine lines of wax to a Pysanka egg.
This is the sort of algorithmic catnip that has won TikTok more than 100 million users in the US alone.
But the new bill moving through Congress could end all of that. The RESTRICT Act would expand the president’s power to ban apps or hardware made by companies based in countries that Washington considers “adversaries.” While the bill doesn’t mention any companies by name, Chinese-owned TikTok is widely understood to be its fattest target.
US lawmakers have already banned TikTok on government devices – but the new bill would permit the president to scrap the app from everyone else’s phones too.
Why do people want to ban TikTok? Supporters of a ban say the app, which records loads of personal data about its users, is a national security risk. After all, what’s to stop the Chinese government from demanding TikTok hand over all that data on ordinary Americans’ locations, obsessions, and contacts? (Answer: nothing – it’s a one-party state.)
What’s more, the platform’s vast reach has raised concerns that Beijing – or its friends – could use TikTok for propaganda or influence operations meant to mess with American politics.
My niece, for her part, says that while the political and privacy issues don’t come up much among her friends, she does worry about this problem of disinformation. “TikTok has a false sense of credibility. If you wanted to get a large number of people to believe something that was not true,” she says, “TikTok could be useful for that.”
TikTok says it recognizes the concerns, but points out that it has already negotiated solutions to these issues with the US. Those reportedly include creating a special US-based oversight board for its content and transferring US users’ data to servers run by American companies.
Opponents of a ban have strong arguments too.
For one thing, a big legal fight could await.
“There are important First Amendment concerns,” says Anupam Chander, a scholar of international tech regulation at Georgetown Law School. “TikTok is an enormous speech platform, one that millions of Americans depend on on a daily basis.”
Supporters of a ban disagree, arguing that a ban on the company isn’t a ban on speech itself. But the issue would almost certainly wind up before the courts before long.
At the same time, banning TikTok could provoke a backlash at home. While polls show a majority of Americans support a ban, Democrats are far less keen than Republicans, and younger voters – TikTok’s primary users – are evenly split over the issue.
There’s a global angle too. Banning TikTok or forcing it to house its data in the US could set a precedent that comes back to hurt global American firms, according to Caitlin Chin, a tech regulation expert at CSIS.
“The U.S. economy depends on cross-border data flows,” she says. “If the United States starts banning companies based on their corporate ownership or their country of origin, this could encourage other countries to do the same.”
But perhaps the biggest issue, says Chin, is that banning TikTok wouldn’t really address the specific concerns that TikTok’s critics have raised.
Thousands of American companies already sell data to brokers who can pass it on to hostile governments, she points out. And as we’ve seen, US-based social media platforms are hardly immune to spreading disinformation themselves. For Chin, the problem is more basic.
“The US has very outdated and fragmented regulations when it comes to both data privacy and content moderation. Banning TikTok is not actually going to solve our data privacy or surveillance or propaganda problems.”
As for Valeria and her friends, banning TikTok might not be the worst thing, she says.
Tech companies' role in the spread of COVID-19 misinformation
Marietje Schaake, International Policy Director at Stanford's Cyber Policy Center, Eurasia Group senior advisor and former MEP, discusses trends in big tech, privacy protection and cyberspace:
Why is misinformation about the COVID-19 test spreading so fast across social media platforms?
One underlying reason is that the US has been so reluctant to hold tech companies to account at all. There are understandable sensitivities about online speech, and the First Amendment gives tech companies a lot of room to say that they simply don't want to censor anyone. Or that they're just platforms, connecting messenger and audience, buyer and seller, without responsibility. But what is missing in these reflections is how other rights or principles can get crushed, public health being an obvious one in the case of the COVID-19 pandemic. Companies so far have taken a hands-off approach. They've not been reigned in by lawmakers. And some very cynical actors are happy to profit off the pandemic or to spread conspiracy theories. Sadly, they are having a field day.
How does the pandemic itself impact these dynamics?
It's a mix of people spending more time online combined with more uncertainty about the evolving facts and knowledge around the virus, new variants, and the latest recommendations by officials on how to best mitigate risk. They all create the optimal conditions for dis and misinformation about COVID tests, but also other COVID related matters. And I think it's tragic how some people will cynically use a crisis for their own agendas and benefits.
Florida law would fine social media companies for censoring politicians
Marietje Schaake, International Policy Director at Stanford's Cyber Policy Center, Eurasia Group senior advisor and former MEP, discusses trends in big tech, privacy protection and cyberspace:
What is the deal with the new Florida law that fines social media companies for censoring politicians?
Well, it's a deal of Floridian politics, it is informed by Republican anger about the banning of President Trump off of Twitter, Facebook, and YouTube. But the last word has not been said about the new law. Challenges based on companies' first amendment rights, as well as compatibility with current intermediary liability exemptions, like Section 230, will probably be fought out in court.
Will the law help or hurt the spread of misinformation on social media?
Now clearly, not only politicians like Trump have been guilty of sharing dis and misinformation, others have, too. So one law, in one state, will unlikely solve that vast and also complicated problem.