Did the TikTok prohibition go too far?

While there may not be definitive evidence yet, states law Professor Alan Rozenshtein about the perceived national security risks associated with the social media platform TikTok, “but the weapon is assembled, it’s loaded, it’s on the table, and it’s aimed. You are much closer to this disturbing scenario than you might realize.”

Rozenshtein, an educator at the University of Minnesota Law School, delivered remarks at a Harvard Law School gathering on Monday alongside Anupam Chander, a professor at Georgetown Law. The two scholars discussed the U.S. regulation mandating that ByteDance, TikTok’s parent company based in Beijing, divest the app to a U.S. entity or face a blanket ban in the country, and the 75-day reprieve granted to ByteDance by President Trump, which is set to expire on April 5.

Rozenshtein acknowledged that it was far from ideal but largely endorsed the legislation Congress approved last year, emphasizing that TikTok, known for delivering tailored series of brief videos, could acquire substantial information on its 170 million American users for counterespionage purposes. Furthermore, he remarked that the Chinese government could influence TikTok, which relies on algorithms, to adjust its algorithms in ways detrimental to U.S. interests through ByteDance.

“Envision that the United States and China enter into a military conflict over Taiwan,” stated Rozenshtein. “The immediate concern would be that TikTok might be inundated with pro-Chinese, anti-Taiwan, and anti-American content. Considering TikTok’s immense popularity, particularly among younger Americans, who increasingly rely on it as their main news source, this is quite alarming.”

Contrarily, Chander critiqued the TikTok regulation due to its speculative essence and potential infringements on First Amendment rights. In its legal challenge against the regulation, TikTok asserted that it breached the speech protections guaranteed by the First Amendment. The Supreme Court dismissed TikTok’s claims in a judgment on Jan. 17, just two days prior to the proposed ban’s implementation.

“In Professor Rozenshtein’s account, the issue was entirely speculative,” commented Chander. “The concern revolved around the possibility of engaging in a military conflict. They might then employ the app to sway us in favor of China, disregarding our sense of nationalism, undermining democracy, etc., or they may persuade us that Taiwan is genuinely a part of China and hence rightfully belongs to China, which are the types of highly conjectural assertions that First Amendment jurisprudence generally has not condoned.”

Chander and Rozenshtein contemplated the possibility of another extension to grant TikTok additional time to align with the regulation.

Chander indicated that Trump could invoke the International Emergency Economic Powers Act (IEEPA), a federal statute enabling the president to oversee international trade during a national crisis instigated by a foreign threat.

“If I were serving in the White House Counsel’s Office, I would utilize IEEPA,” remarked Chander. “I would declare, ‘You must maintain TikTok’s functionality because otherwise, users may migrate to RedNote.’”

RedNote, another Chinese social media application, experienced a surge in American users following the TikTok prohibition. Experts suggest that RedNote may present greater security threats than TikTok due to its data being stored on Chinese servers, in contrast to TikTok, which keeps American users’ data in Texas. Additionally, RedNote faces closer examination from the Chinese government, being subject to censorship attempts — TikTok claims it does not face such scrutiny.

Nevertheless, the two social media platforms are not identical. TikTok focuses on entertainment, educational videos, and trending cultural phenomena, whereas RedNote, which began as a shopping service, emphasizes user-generated tips related to travel, beauty, fashion, and shopping.

When queried about the potential for a one-year postponement, Rozenshtein voiced apprehensions regarding the overextension of executive authority. “If we have gleaned anything, it is that the one-way ratchet of executive power and the capacity to alter laws carries significant drawbacks,” he stated.

Both Chander and Rozenshtein concurred that the U.S. government should have proactively tackled national security issues concerning TikTok long ago, rather than waiting until it attained widespread popularity. They voiced unease regarding the expedient way Congress ratified the TikTok legislation after years of stagnation.

“The Biden administration held the authority to demand the divestiture of TikTok upon assuming office,” stated Chander. “It halted negotiations regarding the mitigation agreement with TikTok in August 2022. The administration possessed this authority for years and chose to remain inactive.”

Chander noted that the TikTok legislation was fueled by trepidations over espionage and propaganda, but referencing the remarks of former Republican Representative Mike Gallagher of Wisconsin, who co-sponsored the bill, asserted that “the predominant concern revolved around the threat of propaganda.”

Regarding the legislation’s passage, Chander pointed to statements made by Gallagher, who indicated that the Oct. 7 attacks by Hamas on Israel, accompanied by the surge of pro-Palestinian sentiments and antisemitic material on the platform, contributed to the bill’s bipartisan support in March 2024.

Despite assertions from detractors claiming a lack of evidence for TikTok’s influence over content, Rozenshtein maintains that the risk is tangible. Even if the legislation has shortcomings, he believes it represents the most effective action the U.S. can undertake.