Don't Ban TikTok and WeChat
President Trump’s executive orders threatening to ban TikTok and WeChat, two of the most popular messaging and social media apps in the world, are an unprecedented abuse of emergency powers. No president has ever taken actions like these against platforms that tens of millions of people in the United States use.
Selectively banning platforms does little to protect our personal data from abuse — comprehensive surveillance reform and consumer privacy legislation would actually help accomplish that goal. Instead, the bans could cut off the flow of information, art, and communication that social media provides, interfering with communities and connections users in the United States have with each other and with people around the world. This interference with freedom of expression and association violates the First Amendment.
Trump’s executive orders are vague and don’t explain the “emergency” purportedly at issue. They also leave important details unclear for 45 days — like the definition of “transactions” to which the bans apply, and how the prohibitions will apply to WeChat’s parent company, Tencent, which has investments in a number of U.S.-based businesses, including Reddit and Riot Games.
But here is what we do know:
Trump’s orders are an abuse of emergency powers under the pretense of national security.
Trump has claimed the power to ban TikTok and WeChat under a law that Congress passed in 1977, the International Emergency Economic Powers Act (IEEPA). When Congress passed this law, it intended to rein in abuses of presidential power. Too often, though, it has not worked that way.
The law allows presidents to respond to “any unusual and extraordinary” foreign “threat” to the United States’ “national security, foreign policy, or economy.” But Congress did not define terms like “emergency,” “threat,” or “national security,” or impose constraints on powers that presidents can abuse too easily, in violation of fundamental rights. That is why the ACLU believes presidential emergency powers — and IEEPA — must be fundamentally overhauled.
Meanwhile, Trump has taken abuse of authority to yet another level, invoking emergency and national security powers far beyond what Congress intended and the Constitution allows, to score political points, serve his xenophobic and racist agenda, and spread fear and uncertainty. He appears to be doing the same thing by selectively banning TikTok and WeChat, which are owned by companies based in China. But even under IEEPA, Congress explicitly says that presidents can’t ban any “personal communication, which does not involve the transfer of anything of value.” Trump's orders appear to ignore this important constraint.
Selectively banning entire platforms violates the First Amendment and harms freedom of speech online.
Millions of people in the United States watch or post videos to TikTok and rely on WeChat for connections to family, friends, and work relationships. They are all engaging in First Amendment-protected speech, association, and expression.
The online communities created by TikTok and WeChat are important to their users. People derive joy from posting songs and videos, or de-stressing in these stressful times with games or images of . Simply sending a ❤ emoji to a family member or friend is a meaningful personal communication. People also use the apps for political activism. Influencers like , , and have hundreds to millions of followers on TikTok — with all the fun, earnings, and political influence it can bring. “Favoriting” or “liking” a post can convey meaning. It can also be financially important to the platform and to the businesses that advertise their goods and services based on that expressive information.
In about six weeks, the Trump administration will specify the “transactions” it wants explicitly to ban. The consequences could be far-reaching, impacting TikTok and WeChat users or app stores, Internet Service Providers, web hosting companies, or any of the other network services that are part of online communications.
Still, people who use the platforms are worried that they will lose access to their services and may already stop posting on or engaging with them. And there is real cause for concern. Failing to comply with Trump’s orders could violate IEEPA, which carries civil fines of up to $250,000 even if the violation is not intentional and criminal penalties if a violation is intentional. Subjecting people to penalties for exercising their freedoms of expression and association violates the Constitution.
Privacy concerns are not the motivating factor behind the bans.
The Trump bans refer to threats to privacy if the Chinese government gets its hands on Americans’ private information. It is true that the Chinese government censors, suppresses dissent, and commits authoritarian, rights-violating abuses — mostly against its own people. It is also true that and collect broad categories of their users’ data and there are legitimate concerns about the sharing of that information with the Chinese government. But the administration has provided no specific and direct evidence of harm from TikTok and WeChat — only vague speculation and assertions. There is no legitimate public basis for these extraordinary bans — and in any event, sanctioning entire platforms significantly harms users’ First Amendment rights.
In fact, the data TikTok and WeChat collect does not appear substantially different from the kinds of data other foreign companies or American companies like Facebook or Google collect. And Trump has made no attempt to address privacy invasions caused by these companies operating in the United States. Nor has he supported surveillance reforms that would better protect the sensitive data of Americans and others against warrantless spying by U.S. intelligence agencies.
If protecting the information of users in the United States were a true motivating factor, the U.S. government could, for example, support strong consumer privacy legislation that would limit the amount of data social media companies can collect in the first place. This, as the ACLU has long said, would reduce privacy threats from ; discriminatory advertisements for jobs, housing, and credit; data brokers selling our information to target immigrants; and abusive demands by foreign governments.
The government could also pass legislation or seek international agreements ensuring that data brokers or companies providing services to people in the United States can only hand over data, such as location history or web browsing logs, to any government — including our own — if there is a search warrant or a similar process involving independent oversight and a showing of just cause.
The privacy harms from data collection by apps are real. But the solution isn’t to capriciously ban two platforms. Bans that violate the First Amendment are the worst choice — ineffective, unconstitutional, and harmful to the lives and interests of tens of millions of people.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.