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TikTok

TikTok has faced accusations of espionage in the United States, and is under investigation by the European Union over claims it was used to sway Romania's presidential election in favour of a far-right candidate. The platform also has been banned for use by personnel in state institutions in several countries.

TikTok is a social-media platform that lets users create, upload, and watch short video clips overlaid with text, voiceovers, and music. For each individual viewer, the platform creates a continuous sequence of videos based upon that user’s behavior and several other factors, with the aim of keeping that user engaged. The TikTok platform has more than 170 million monthly users in the United States and more than one billion users worldwide. It is an immensely popular platform on which users in the United States have uploaded more than 5.5 billion videos in a single year.

The term "Manchurian Candidate" comes from the 1959 novel by Richard Condon, which was later adapted into films in 1962 and 2004. It refers to the story of a person who is brainwashed or manipulated into performing acts against their own country, often without their full awareness. The Manchurian Candidate involved manipulation of a dozen people, whiel TikTok manipulates millions. TikTok's algorithm may promote content favorable to certain political narratives, including those aligned with the Chinese Communist Party, while suppressing critical viewpoints. This selective content promotion can shape user perceptions and potentially manipulate public opinion.

What a TikTok user sees on the platform is determined by a recommendation engine, company content moderation decisions, and video promotion and filtering decisions. The recommendation engine is an algorithm that displays videos based upon content metadata and user behavior. It identifies a pool of candidate videos for a user, then scores and ranks those videos using machine-learning models designed to determine which video(s) would be most appealing to the user.

Content moderation decisions involve a combination of machine and human actions. According to TikTok every video on the TikTok platform goes through “automated moderation” and if deemed potentially problematic is sent to a human moderator for review. Video promotion (also called “heating”) and demotion (also called “filtering”) decisions are used to advance TikTok’s commercial or other goals. These decisions involve promoting or limiting specific videos on the platform.

TikTok has one of the most advanced algorithm systems and is the most addictive as compared to other social media platforms. While research on social media addiction is abundant, less is known about how the TikTok information system environment affects users’ internal states of enjoyment, concentration, and time distortion (which scholars define as the flow experience), which in turn influences their addiction behavior. The term, social media addiction, refers to the consistency of addiction-like symptoms or a lack of self-discipline regarding social media.

TikTok has the most advanced algorithm system, especially in terms of participation, content, and types of interaction, which makes the addiction problem of TikTok more severe than the other popular social media. TikTok’s target audiences are adolescents and young adults with short attention spans. Yung people are naive and easily absorbed when exposed to a wide variety of short video contents. Given the complexity of addiction behavior, scholars generally acknowledge a closed-loop relationship between TikTok addiction and algorithm optimization.

Child and adolescent brains, which lack the impulse control of adults, are particularly susceptible to exploitation through the desire, reward, and reinforcement system that endless scrolling provides. To get users hooked on the app, TikTok uses a dopamine-inducing algorithm that spoon-feeds users highly tailored videos to keep them trapped on the platform for hours on end.

Users seem to be caught in an entertainment spiral. TikTok’s manipulative platform traps young users into cycles of excessive use that the company knows contribute to profound psychological and physiological harms, including body dysmorphia, sleep loss, depression, anxiety, and long-lasting neurological impacts.

TikTok has repeatedly stated that it has “addressed” harms related to its Recommendation Engine and that its algorithms are “designed with safety as a consideration.” In particular, the company has emphasized that it “address[es] the challenges of recommendation engines” and “filter bubble[s]” by “[i]nterrupting repetitive patterns,” “[d]iversifying recommendations,” and “[s]afeguarding the viewing experience.” In practice, TikTok’s Recommendation Engine continues to trap teenagers into “filter bubbles” that bombard them with precisely the kinds of content that TikTok claims not to allow, including videos about weight-loss, body-image, and self-harm content. TikTok has known of concerns about its algorithm sending children into these downward spirals of depressive content since at least 2020—and likely well before.

TikTok’s public claims that it “addressed” filter bubbles merely reference minor tweaks that have proven ineffective. For instance, TikTok places the burden on users to “refresh” their feeds if “recommendations no longer feel relevant” or do not “provide enough topical variety,” and TikTok avoids recommending “two videos in a row made by the same creator or that use the same sound.” These modest changes have not prevented the App from recommending increasingly despairing messages, adult themes, and other dangerous content.

Because TikTok was wholly owned by ByteDance, a foreign company, there was a risk of a foreign adversary exploiting corporate form to take advantage of legal protections in the United States. Indeed, the Government presented evidence to suggest the PRC intentionally attempts to do just that.

The Executive first became concerned about the PRC’s influence over TikTok in 2018 when ByteDance relaunched the platform in the United States following its acquisition of Musical.ly. In 2019, upon finding that “foreign adversaries” were “exploiting vulnerabilities in information and communications technology and services,” President Trump declared a national emergency. President Trump separately invoked his powers under the International Emergency Economic Powers Act (IEEPA) and the National Emergencies Act to address “the threat posed by one mobile application in particular, TikTok.”

On 01 August 2020 with the Committee on Foreign Investment in the United States (CFIUS) concluding that TikTok could not sufficiently mitigate its national security concerns and referring the transaction to the President. The President, acting on that referral, ordered ByteDance to divest any “assets or property” that “enable or support ByteDance’s operation of the TikTok application in the United States.” President Biden signed into law a bill prohibiting the use of TikTok on government devices. See generally Pub. L. No. 117-328, div. R, 136 Stat. 5258 (2022)

During 2021 and 2022, TikTok submitted multiple drafts of its proposed National Security Agreement (NSA) and Executive Branch officials held numerous meetings to consider TikTok’s submissions.

On April 24, 2024 the President signed the Protecting Americans from Foreign Adversary Controlled Applications Act into law. Pub. L. No. 118-50, div. H. The Act identifies the People’s Republic of China (PRC) and three other countries as foreign adversaries of the United States and prohibits the distribution or maintenance of “foreign adversary controlled applications.”1 Its prohibitions will take effect on January 19, 2025 with respect to the TikTok platform.

Assistant Director of National Intelligence Casey Blackburn explained, the “PRC is the most active and persistent cyber espionage threat to U.S. government, private-sector, and critical infrastructure networks.” Its hacking program “spans the globe” and “is larger than that of every other major nation, combined.” The PRC has “pre-positioned” itself “for potential cyber-attacks against U.S. critical infrastructure by building out offensive weapons within that infrastructure.” Consistent with that assessment, the Government “has found persistent PRC access in U.S. critical telecommunications, energy, water, and other infrastructure.”

According to TikTok’s “privacy policy,” TikTok automatically collects large swaths of data about its users, including device information (IP address, keystroke patterns, activity across devices, browsing and search history, etc.) and location data (triangulating SIM card or IP address data for newer versions of TikTok and GPS information for older versions). It may also collect image and audio information (including biometric identifiers and biometric information such as faceprints and voiceprints); metadata (describing how, when, where, and by whom content was created, collected, or modified); and usage information (including content that users upload to TikTok). That is not to mention information that users voluntarily provide, such as name, age, username, password, email, phone number, social media account information, messages exchanged on the platform and, “with your permission,” your “phone and social network contacts.”

At bottom, the Government lacks confidence that it has sufficient visibility and resources to monitor TikTok’s promised measures, nor does it have “the requisite trust” that “ByteDance and TTUSDS would comply in good faith.” The Government “need not wait for a risk to materialize” before acting; its national security decisions often must be “based on informed judgment.”

Even putatively ‘private’ companies based in China do not operate with independence from the Party and cannot be analogized to private companies in the United States. Through its “control over Chinese parent companies,” the PRC can also “access information from and about U.S. subsidiaries and compel their cooperation with PRC directives.” As a result, the PRC can “conduct espionage, technology transfer, data collection, and other disruptive activities under the disguise of an otherwise legitimate commercial activity.”

The National Security Law of 2015 requires all citizens and corporations to provide necessary support to national security authorities. Similarly, the Cybersecurity Law of 2017 requires Chinese companies to grant the PRC full access to their data and to cooperate with criminal and security investigations.

The PRC has engaged in “extensive and yearslong efforts to accumulate structured datasets, in particular on U.S. persons, to support its intelligence and counterintelligence operations. The PRC uses its cyber capabilities to support its influence campaigns around the world. Those global “influence operations” aim to “undermine democracy” and “extend the PRC’s influence abroad.” Specifically, the PRC conducts “cyber intrusions targeted to affect U.S. and non-U.S. citizens beyond its borders — including journalists, dissidents, and individuals it views as threats — to counter and suppress views it considers critical of [the PRC].”

As it relates to TikTok in the United States, the Government predicts that ByteDance and TikTok entities “would try to comply if the PRC asked for specific actions to be taken to manipulate content for censorship, propaganda, or other malign purposes on TikTok US.” The Government says that ByteDance, which is subject to PRC laws requiring cooperation with the PRC, could do so by acting unilaterally or by conscripting its U.S. entities. The former conclusion is evidenced by the fact that the PRC maintains a powerful Chinese Communist Party committee “embedded in ByteDance” through which it can “exert its will on the company.” As of 2022, that committee “was headed by the company’s chief editor and comprised at least 138 employees at its Beijing office, including senior company managers.”

Preventing covert content manipulation by an adversary nation also serves a compelling governmental interest. TikTok incorrectly frames the Government’s justification as suppressing propaganda and misinformation. The Government’s justification in fact concerns the risk of the PRC covertly manipulating content on the platform. TikTok also suggests the Government does not have a legitimate interest in countering covert content manipulation by the PRC. To the extent that is TikTok’s argument, it is profoundly mistaken. “At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal.” Turner I, 512 U.S. at 641.

TikTok contends the Government’s contentmanipulation rationale is speculative and based upon factual errors. TikTok fails, however, to grapple fully with the Government’s submissions. On the one hand, the Government acknowledges that it lacks specific intelligence that shows the PRC has in the past or is now coercing TikTok into manipulating content in the United States. On the other hand, the Government is aware “that ByteDance and TikTok Global have taken action in response to PRC demands to censor content outside of China.” The Government concludes that ByteDance and its TikTok entities “have a demonstrated history of manipulating the content on their platforms, including at the direction of the PRC.”

Notably, TikTok never squarely denies that it has ever manipulated content on the TikTok platform at the direction of the PRC. Its silence on this point is striking given that “the Intelligence Community’s concern is grounded in the actions ByteDance and TikTok have already taken overseas.” It may be that the PRC has not yet done so in the United States or, as the Government suggests, the Government’s lack of evidence to that effect may simply reflect limitations on its ability to monitor TikTok.

The Government reasonably predicts that TikTok “would try to comply if the PRC asked for specific actions to be taken to manipulate content for censorship, propaganda, or other malign purposes” in the United States. That conclusion rests on more than mere speculation. It is the Government’s “informed judgment” to which we give great weight in this context, even in the absence of “concrete evidence” on the likelihood of PRC-directed censorship of TikTok in the United States. Humanitarian Law Project, 561 U.S. at 34–35.

When a government — domestic or foreign — “stifles speech on account of its message . . . [it] contravenes this essential right” and may “manipulate the public debate through coercion rather than persuasion.” Id.; see also Nat’l Rifle Ass’n of Am., 602 U.S. at 187 (explaining that at the core of the First Amendment “is the recognition that viewpoint discrimination is uniquely harmful to a free and democratic society”).

In this case, a foreign government threatens to distort free speech on an important medium of communication. Using its hybrid commercial strategy, the PRC has positioned itself to manipulate public discourse on TikTok in order to serve its own ends. The PRC’s ability to do so is at odds with free speech fundamentals. Indeed, the First Amendment precludes a domestic government from exercising comparable control over a social media company in the United States. See NetChoice, 144 S. Ct. at 2407 (explaining that a state government “may not interfere with private actors’ speech” because the First Amendment prevents “the government from tilting public debate in a preferred direction”.

Rather than attempting itself to influence the content that appears on a substantial medium of communication, the Government has acted solely to prevent a foreign adversary from doing so. As our concurring colleague explains, this approach follows the Government’s well-established practice of placing restrictions on foreign ownership or control where it could have national security implications.

Were a divestiture to occur, TikTok Inc.’s new owners could circulate the same mix of content as before without running afoul of the Act. People in the United States could continue to engage with content on TikTok as at present. The only change worked by the Act is that the PRC could not “manipulate the public debate through coercion rather than persuasion.” Turner I, 512 U.S. at 641.

That the Congress created a new mechanism by which the Executive can counter threats similar to TikTok in the future — and excluded a category of applications from that framework — does not suggest the Congress’s national security concerns specific to TikTok were a charade. In fact, the Congress was not required to include a generally applicable framework at all; it could have focused only on TikTok.

A federal appeals court in the United States of America (USA) upheld a law that bans the use of TikTok in the country unless its Chinese parent company, ByteDance, sells its stake in the app. It is noted that a three-judge panel of the Court of Appeals for the District of Columbia District unanimously sided with the Department of Justice, declaring the law constitutional and refusing to consider the petitions of TikTok and its Chinese parent company ByteDance.

"We conclude that the parts of the law that plaintiffs have standing to challenge withstand constitutional review," Senior Justice Douglas Ginsburg said in the decision. He explained that the court decided that the TikTok ban was justified because it aims to protect the data of American users and prevent Chinese influence on content.

The Court ruled that the Act did not contravene the First Amendment to the Constitution of the United States, nor do they violate the Fifth Amendment guarantee of equal protection of the laws; constitute an unlawful bill of attainder, in violation of Article I, § 9, clause 3; or work an uncompensated taking of private property in violation of the Fifth Amendment.

The court also noted that this decision will significantly affect TikTok and its users, who will be forced to look for other platforms to communicate. However, such a decision is justified by the threat to national security, and not by the US government's unwillingness to find a compromise with TikTok, as they have long cooperated in this direction.

The District of Columbia and 13 U.S. states filed new lawsuits against the social media platform TikTok, accusing the platform of causing addiction and harming mental health among American teenagers, The New York Times reports. The states accuse TikTok of using software designed to ensure that children spend as much time on the platform as possible and of misrepresenting information about content moderation. The company denies the charges.