The bill passed in the House that’s likely to win the Senate and be swiftly signed into law by the White House’s dynamic Biden hologram is at best tangentially about TikTok.
You’ll find the real issue in the fine print.
A “foreign adversary controlled application,” in other words, can be any company founded or run by someone living at the wrong foreign address, or containing a small minority ownership stake. Or it can be any company run by someone “subject to the direction” of either of those entities. Or, it’s anything the president says it is. Vague enough?
As Newsweek reported, the bill was fast-tracked after a secret “intelligence community briefing” of Congress led by the FBI, Department of Justice, and the Office of the Director of National Intelligence (ODNI). The magazine noted that if everything goes as planned, the bill will give Biden the authority to shut down an app used by 150 million Americans just in time for the November elections.
Say you’re a Democrat, however, and that scenario doesn’t worry you. As America This Week co-host Walter Kirn notes, the bill would give a potential future President Donald Trump “unprecedented powers to censor and control the internet.” If that still doesn’t bother you, you’re either not worried about the election, or you’ve been overstating your fear of “dictatorial” Trump.
We have two decades of data showing how national security measures in the 9-11 era evolve. In 2004 the George W. Bush administration defined “enemy combatant” as “an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States.” Yet in oral arguments of Rosul et al v Bush later that year, the government conceded an enemy combatant could be a “little old lady in Switzerland” who “wrote a check” to what she thought was an orphanage.
Eventually, every element of the requirement that an enemy combatant be connected to “hostilities against the United States” was dropped, including the United States part. Though Barack Obama eliminated the term “enemy combatant” in 2009, the government retained (and retains) a claim of authority to do basically whatever it wants, when it comes to capturing and detaining people deemed national security threats. You can expect a similar progression with speech controls.
Just ahead of Monday’s oral arguments in Murtha v. Missouri, formerly Missouri v. Biden — the case so many of us hoped would see the First Amendment reinvigorated by the Supreme Court — this TikTok bill has allowed the intelligence community to re-capture the legislative branch. Just a few principled speech defenders are left now. Fifty Democrats voted against the bill, which is heartening, although virtually none argued against it on First Amendment grounds, whis is infurating. Pramila Jayapal had a typical take, saying the ban would “harm users who rely on TikTok for their livelihoods, many of whom are people of color.”
Contrast that with Kentucky Senator Rand Paul, who went after members of his own party, singling out Republicans encouraging a governmental power grab after years of fighting big tech abuses not just at TikTok but other platforms. These people claim to be horrified, he said, but actions speak louder than words.
“Look at their legislative proposals,” he said, noting many want to “set up government agencies and panels” on speech, effectively saying “If you’re not putting enough conservatives on there, by golly we’re going to have a government commission that’s going to determine what kind of content gets on there.”
These, he said, are “scary ideas.”