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Why the US will face an uphill climb in banning TikTok

US Secretary of State Mike Pompeo told Fox News on Monday that the federal government is looking at banning TikTok, like India. But that would be an uphill climb for the United States, whose domestic politics and court system would pose challenges that would be hard to navigate without smoking-gun evidence that the app is harmful to Americans’ security, something India has not produced.

Free speech

First off, there’s the first amendment — free speech law in the US constrains the government from even blocking websites, something it does rarely outside of child porn and terrorist content, which tend to be international efforts. When the US does block access to websites or tries to thwart foreign influence on them, it uses other regulatory and legislative tools at its disposal, like seizing domains (like it did for Megaupload), scuttling mergers (like it did for Grindr), or blocking undersea cable infrastructure between the US and China. As Fortune’s Jeff John Roberts points out, US courts have long upheld code as free speech, which would give TikTok owner ByteDance a reasonably clear path to blocking such efforts.

Politics and optics

Aside from the legal awkwardness of such a heavy-handed move, there’s also the optics of banning a service that in the US has emerged as an anti-establishment voice. While Trump has moved to dilute the safe harbour social media companies have as intermediaries, an outright ban would attract backlash from free speech advocates and political opponents alike. What’s more, regular citizens polled by Morning Consult are generally opposed to a ban, further complicating the Trump administration’s options in a presidential election year.

So what can the US do?

All this doesn’t go to say that the US has no options against TikTok, though. The app’s reputation around privacy has raised alarm bells in the country, with the Committee on Foreign Investment in the US, an interagency body, launching an investigation into the service’s acquisition of Musical.ly. What’s more, the Federal Trade Commission is looking into whether TikTok has run afoul of an agreement last year on protecting children’s privacy.

A fundamental difference between the US and India is the ease with which civil rights can be subordinate to geopolitics, and the willingness of companies to challenge such moves through the court system. TikTok has ruled out even going to court in India, which it did during an earlier ban, and two top Supreme Court litigators, including one that has represented TikTok before, said they wouldn’t represent ByteDance in the case. But beyond a simple ban, the United States is very much capable of taking steps that, if they don’t knock out the service in the country, might at least deal a significant body blow.

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I cover the digital content ecosystem and telecom for MediaNama.

MediaNama’s mission is to help build a digital ecosystem which is open, fair, global and competitive.

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