The House TikTok Ban Is an Empty Threat

There's no way that the House's attempted TikTok ban can withstand First Amendment scrutiny.

Last month, the House of Representatives proudly voted to ban TikTok unless its corporate parent sells the app within six months. But proponents eager to strike a blow against the Chinese government might not celebrate just yet. There are three main problems with the proposed TikTok ban: it’s probably unconstitutional, it’s practically unenforceable, and, even if it worked, it wouldn’t solve the problem of China gathering sensitive data about American users.

Other than that, it’s fine.

Legally, there are significant First Amendment problems with a TikTok ban. Blocking the platform implicates the speech rights of both TikTok itself and the millions of Americans who use the platform every day. To survive judicial review, the government must show that the ban furthers an important government interest unrelated to speech, and does not burden significantly more speech than necessary to further that interest.

The first prong requires the government to show that TikTok poses a real harm to Americans. Proponents argue that the ban is necessary to prevent the Chinese government from using the app to spy on Americans. One could concede that Beijing would love to exploit TikTok’s trove of information for nefarious purposes. But could they?

TikTok received significant criticism for a 2022 incident in which company employees used the app’s location data to investigate whether co-workers leaked confidential information to reporters. But the company has taken significant measures since then to secure data on American users. Through a program called Project Texas, TikTok created a standalone entity to manage U.S. operations, and since 2023, has routed all U.S. traffic to American servers owned by Oracle. This structure is designed to protect U.S. data from being accessed by offshore entities, as Oracle—not TikTok—controls the gateways to those servers.

Read More: The Grim Reality of Banning TikTok

But even if one concedes Congress’s national security concerns, a TikTok ban fails the second prong, by chilling far more speech than necessary to address that harm. To paraphrase the Supreme Court, Congress launches a missile to kill a mouse. It’s possible that some TikTok user data has intelligence value to the Chinese Communist Party. But the overwhelming majority of TikTok users and videos pose absolutely no threat to national security. A TikTok ban would block millions of dance videos, sea shanties, and other trivial pieces of content that have no relationship with TikTok’s threat profile. And as the court found when enjoining Montana’s TikTok ban, blocking such content can pose real harm to users, particularly those who rely on the platform to conduct business.

Moreover, the ban is ineffective. Almost 150 million Americans currently use TikTok. The House bill would prohibit companies from distributing, maintaining, or updating TikTok within the U.S. But it would not—and practically speaking, could not—prevent existing users from continuing to access the app from offshore servers. Instead, it mostly harms those existing users, by preventing TikTok from pushing security patches and other updates to enhance security and improve the user experience.

Finally, a ban does not address the fundamental problem of China and other foreign adversaries obtaining American user data. TikTok is far from the only company that collects potentially sensitive information about users. Facebook, X, Google, Lyft, and others all monetize user data, which is often sold through brokers on data markets where governments can purchase—or steal—this data just like other entities can. If America is serious about preventing the flow of American user data to foreign governments, the answer lies with more comprehensive and nuanced federal privacy legislation.

Proponents may respond that ultimately, the bill is not about banning TikTok, but instead about cajoling parent company ByteDance into selling the app to American owners. Setting aside the logistical difficulties of compiling such a complex deal in six months, such threats only work if they are credible. Twice now, courts have invalidated government attempts to ban TikTok. There’s no reason to believe the current House proposal would fare differently. If TikTok is reasonably certain the ban is unconstitutional, it does not need to take the drastic step of divestiture to avoid it.

None of this is to suggest that China is not a real geopolitical adversary, or that TikTok does not raise important national security concerns. But there are other tools the government can use to mitigate those risks. While banning TikTok grabs headlines, it chills far more speech than necessary while failing to address the problems it purports to solve.