The entire U.S. case against TikTok is a sham. Whatever the reasons are for why the U.S. Justice Department went after TikTok, one can be fairly certain that it had little to do with National Security.

According to http://www.unchainedmusic.io “The user base is notably diverse, with 36.2% of users aged 18-24 and 34% aged 25-34, highlighting its strong presence among young adults.” I think it is safe to say that the TikTok user demographics do not align with Senior Pentagon or Government Officials, the kind of people who would be valuable assets for a foreign government to track.

More importantly there are far more effective covert ways of tracking someone via their cell phone as Journalist Ronan Farrow as reported on.

But maybe most importantly the Pentagon had already banned TikTok on Government devices in 2019 and the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA) was first introduced in Congress as H.R. 7521 on March 5, 2024. So five years after the Pentagon had already acted to protect troops and “National Security,” Congress comes along demanding that ByteDance divest itself from TikTok or face a nationwide ban.

What is suspicious is that Congress did not include in this legislation robust data collection restrictions for all cell phone apps, something that would have helped all Americans feel safer using their cell phones. I asked Google Gemini how the EU handles these kinds of concerns and Gemini responded “The DSA and GDPR have a broader scope than PAFACA, addressing a wider range of online harms and privacy concerns beyond just foreign ownership.

What is clear is that the U.S. legislation is designed to threaten any foreign app with a forced sale to a U.S. company if that foreign app is deemed to be a threat to national security. In many ways it feels like eMcCarthyism but with an international trade component allowing American companies to force a fire sale on any foreign assets they wish to own. And it does this without really protecting Americans or National Security because once those foreign assets are owned by an American company the American company will be allowed to continue to secretly track their users and sell their data.

And because the U.S. data protection laws are so lax, a U.S. company could send its user data to China for processing and analysis. So, ByteDance could be forced to sell TikTok to a U.S. company who could then turn around and contract with ByteDance to process the user data for them. I mean, ByteDance would already have all the tools needed to do that.

The mistake that ByteDance made was that they hung their argument on the 1st Amendment. The problem is that National Security already trumps the 1st Amendment. So, before one would have the chance of winning on 1st Amendment grounds, one was going to have to destroy the National Security argument. But I think once you get past the sham argument of National Security, the problem with the 1st Amendment is that while Americans are guaranteed the right to speak, they are not guaranteed a venue to speak through. And this is all important. It is a right that one cannot exercise without a “megaphone,” but a “megaphone” is not guaranteed as part of the 1st Amendment.

The New York Times, quite a big “megaphone” for certain people’s right to speak, could close down tomorrow and go out of business, and that would not be found to infringe on the journalists from the Times “right to speak.” Those journalists can continue to speak in other forums. Just like TikTok users can continue to create content in other apps. Their right to speak has not been infringed by the Government forcing TikTok to shut down.

If I were ByteDance I would have primarily argued equal protection based on non-discrimination. The reality is that all cell phone apps track user data. Apps made by companies all over the world are all doing the same kind of tracking. The proper course for the U.S. Government to take so they are not gaming the system – i.e. so that the Government is not picking winners and losers in the cell phone app industry – is for Congress to pass laws which govern what all companies can do with the data they are collecting on U.S. citizens. These laws should be silent on the purpose of the app or the ownership of the app.

For example, it would be a clear violation of Federal law to say that any app that is owned by a person of Asian heritage is banned in the United States. In fact, it would be a violation of Federal law to say that any app that is owned by a person of Chinese heritage is banned in the United States. It would also be a violation of Federal law to ban any app that included videos of people dancing.

The argument that I would have made in defense of TikTok is that there are ways of protecting the data of U.S. citizens through strong data protection laws and agreements. I know that this was one of their arguments. But I would argue that forcing the sale of TikTok is akin to an act of piracy by the U.S. government. It is a seizure of a valuable international brand to enrich some American interest, as yet to be named. That it is based in a long standing American hatred of Communism and a jingoistic stereotyping of people of Chinese heritage as being subservient to the government of China. While the 21st century reality is that Chinese companies conduct business all around the globe and follow the local laws of the countries where they operate. And, if the U.S. Government does not believe that these local laws are sufficient to protect its citizens or its national security the proper recourse is to strengthen the laws that all foreign companies must follow when doing business inside of the United States.