TikTok: Divest or Ban?

 

The online platform TikTok is once again in the news, this time the target of proposed U. S. legislation.  One of the most popular and innovative social-media outlets, the Chinese-originated and Chinese-controlled app's infinite-scrolling videos have been imitated by Facebook and YouTube, and 170 million Americans use it, many of them under 30.  So why is Congress once more considering legislation that would either force ByteDance, the Chinese parent company, to divest itself of the U. S. division of TikTok, or else face a total ban of the app?

 

The ostensible reason is that despite TikTok's public protestations to the contrary, it appears that user data garnered by the U. S. division of TikTok can be accessed by its masters in China, as I noted in a December 2022 blogpost here.  Whether ByteDance actually exploits this capability is not clear, but adding that to the fact that TikTok has engaged in a certain amount of censorship on subjects sensitive to the Chinese Communist Party's sensibilities provides enough rationale to consider legislative action.

 

In a recent essay in Time, reporter Scott Nover describes the bill that the U. S. House of Representatives passed on March 13.  If passed by the Senate and signed by President Biden, it would present TikTok with a choice:  either totally divest the U. S. division so that it is completely independent of the rest of the Chinese-based organization, or face a total ban on selling and using the app in the U. S.  Although the bill theoretically gives the firm a choice, several sources say that the true intent is to enact a ban, not just to force divestiture. 

 

As the only major social-media app not developed in the U. S., TikTok excites the envy of Facebook and YouTube, and U. S.-based social-media firms would be more than happy to see a major competitor eat the dust, so they could rush in with their replacement apps and fill the void. 

 

Never having used TikTok, I have only a dim idea of how essential it must seem to some teenagers.  In a clumsy attempt to prevent the bill's passage, TikTok urged its users to phone their congressperson to protest the bill.  Representatives were flooded with phone calls, some of which carried the caller's intent to commit suicide if TikTok were banned.  Many of the callers were below voting age and presumably unable to vote against anyone who favors the ban, but the campaign apparently backfired, as it demonstrated TikTok's overwhelming influence with its users more than a principled regard for free speech on their part. 

 

Nover, for his part, thinks that even if the bill becomes law, it will quickly become entangled in court cases, and the record for similar bans at the state level in the courts is not good.  Former President Trump's attempt to ban TikTok by executive action was thwarted by a court, which said there were other ways to achieve the same ends.  So just passing Federal legislation that would effectively ban TikTok won't necessarily mean an uptick in teen suicides, although that possibility can't be discounted.

 

The U. S. government has decidedly mixed motives in its move to ban TikTok, as it would be a big favor to U. S.-based social media firms.  To that extent, the proposed law smells of crony capitalism, which uses government influence to suppress competition.  There are those who take the view that as long as users get better, cheaper services, it doesn't matter whether those services come from a multitude of small firms or from one giant firm.  In other words, bigness isn't a sin, just incompetence or exploitation.  That is an economic debate for another day, but it can't be ignored in the mix of motives that gave rise to the proposed TikTok ban.

 

It's still a theoretical possibility that TikTok would actually divest itself of its U. S. division, but as I said in previous blogs, such things can be mainly on paper rather than in reality.  One thinks of the breakup of Ma Bell, which cut the nationwide giant phone company into regional Baby Bells.  But a few years after the telecommunications landscape opened up to competition, AT&T found few obstacles on its way to reuniting itself, and continues to be a major player in that field today. 

 

Another problem with the proposed bill is that we don't have a smoking gun.  No one has come up with hard evidence that China is definitely exploiting its ability to suck data on its U. S. users into Beijing for nefarious purposes.  But the Chinese are very skillful at concealing their espionage activities and their consequences—that is what good spies do. 

 

To give a completely undocumented but likely example I'm personally familiar with, a few years ago a student employee of mine wanted to get a circuit board design he had developed turned into an actual circuit board.  This is done by sending a digital file to a circuit-board-fab company, which etches and drills the board and sends it back to you.  He looked around to find various prices from different vendors.  An outfit in Colorado wanted $50, another one here in Texas wanted $40 or along there—and a place based in China offered three-day turnaround for something ridiculously cheap, like $12.  I let him use the Chinese $12 vendor, but not without wondering whether that firm and others like it were deeply subsidized by the Chinese government for the purposes of obtaining the raw circuit-board files from thousands of U. S. firms, all without sending a single spy to the U. S.  Maybe all this is a fantasy of mine, but I don't think so.  It was all perfectly legal and probably very effective for the Chinese too.

 

To my mind, the best outcome of the anti-TikTok legislation would be divestiture rather than a total ban. If the federal government shuts down a social-media app with 170 million U. S. users, that is truly a heavy hand placed on First Amendment rights of ordinary citizens to express their opinions.  But even if the ban is attempted, the courts may well have something to say about the matter, so we will just have to stay tuned. 

 

Sources:  I referred to the article "The Grim Reality of Banning TikTok" on the Time website at https://time.com/6952889/tiktok-ban-freedom-of-speech-essay/ and an article in National Review at https://www.nationalreview.com/the-weekend-jolt/what-it-took-for-republicans-to-break-with-trump/.  My previous blogs on TikTok are at https://engineeringethicsblog.blogspot.com/2022/12/time-is-running-out-on-tiktok-in-u-s.html

and

https://engineeringethicsblog.blogspot.com/2022/09/tiktok-and-chinese-connection.html.

 

Big Tech Tries to Have its First Amendment Cake and Eat It Too

 

While my headline lacks something in concision, the topic for today is anything but simple:  whether internet-based enterprises such as Amazon, Google, Tiktok, and X are free to do basically anything they want with the input their users provide, or whether the states of Texas and Florida can impose certain restrictions on content moderation.  Last week the U. S. Supreme Court heard opening oral arguments in two related cases on this topic that the Court has decided to hear together.

 

NetChoice v. Paxton pits the trade association NetChoice, which includes such heavy hitters as Amazon, Google, and X, against the Texas state gadfly and attorney general Ken Paxton, who attempted to enforce a bill that would prohibit social media companies from censoring posts except in extreme cases such as obscenity and libel.  Moody v. NetChoice concerns a law that was passed in Florida at the urging of Gov. Ron DeSantis to prevent social media firms from "de-platforming" a political candidate actively running for office.  The lawsuits arising from NetChoice's objections to what it sees as restrictions on its members' First Amendments freedom of speech have percolated through the federal courts and ended up at the Supreme Court last Monday.

 

There are two extreme positions that mark the boundaries of this debate.  One extreme is taken by the state legislatures, which is that large internet-based firms, including but not limited to social-media outfits such as X and TikTok, are used so universally that they should be considered as "common carriers."  A common carrier, in legal parlance, is a service that is so essential to modern life that it must accept customers and their activities on a basis limited only by common-sense rules.  The classic common carrier was the old Ma Bell system back when all you could do with a phone was call Aunt Maude.  As long as you paid your monthly bill, you could say absolutely anything you wanted to say, and Ma Bell wouldn't stop you.  And anybody who can muster up the cash for a bus ticket can ride the bus.  Similarly, the state bills object to censorship, de-platforming, and other ways that social media companies either emphasize or obscure certain users depending on what they are saying, because the state laws tend to view them as common carriers.

 

The other extreme is taken by NetChoice, which views its members as valiant warriors protecting their own freedom of speech as well as that of their users.  Their classic analogy is the old-fashioned hot-type newspaper, back when all you could do with the paper was line the bottom of the birdcage—after reading it, of course.  Nobody presumed to tell the editorial-page editor what letters he could or could not include in the paper, and so no state law should tell X which tweets to suppress or encourage, or leave alone.  They are private firms and it's their business what they do with their content, not the states' business. 

 

A report on the first day's arguments by the Electronic Privacy Informatiion Center (EPIC) indicates that the Supreme Court justices are not enthusiastic about either end of this spectrum.  In particular, they seem to think that NetChoice is being more than a little hypocritical because of how it has used a law called Section 230.

 

Section 230 of the federal Communications Decency Act gives NetChoice members immunity from prosecution for libel for what any of their users say, in this sentence:  "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."  The word "publisher" echoes our exemplary newspaper editor, and Section 230 lets X say, in effect, "Man, we didn't write or publish or say that.  Our crazy user said that, and you can't blame us for what he said."  Section 230 protection is one of the carefully guarded legal jewels of the NetChoice empire, and flocks of lawyers appear whenever anyone threatens it.

 

At least two Supreme Court justices perceived that NetChoice is trying to have its free-speech cake by defeating the state laws limiting their content-moderation actions, and eat it too by claiming innocence when someone posts something objectionable and a NetChoice member claims immunity under Section 230.  At one point, Justice Gorsuch asked, "So it's speech for the purposes of the First Amendment, your speech, your editorial control, but when we get to Section 230, your submission is that that isn't your speech?"  And at another point, Justice Alito said, "It's your message when you want to escape state regulation, but it's not your message when you want to escape liability under state tort law." 

 

It's anybody's guess what the Court will decide in these cases, but indications are that neither NetChoice nor the states will get everything they want.  My own view is that social-media firms, by catering to the lower instincts of the human mind and heart, have wrought incalculable damage to the political and social structures of not only the U. S. but many other countries as well.  And especially when the government begins to "assist" social-media firms in deciding what is free speech and should be left alone or promoted, and what is "disinformation" and should be de-emphasized or suppressed, we have traveled a good part of the way down a slippery slope to something akin to the old Soviet Union, or the present Peoples' Republic of China, where everything you say and do is monitored and assessed and has consequences that can be quite dire if you go against what the government wants you to do. 

 

The Texas and Florida laws are a first step toward opposing this trend, and NetChoice's actions opposing them is exactly what you would expect a bully to do if someone challenges his dominance.  Fortunately, the federal structure of our government is still functioning, although seriously damaged, and I hope that the justices' decisions in these cases will clip the wings of an industry which, Icarus-like, is flying way too close to the sun.

 

Sources:  I referred to an editorial by Jennifer Huddleston in the Mar. 1, 2024 edition of the Austin American-Statesman, a blog post on the EPIC website at https://epic.org/four-key-takeaways-from-the-netchoice-v-moody-and-paxton-oral-arguments/, and the Wikipedia articles on NetChoice and Section 230.

A Musk-Owned Twitter: Threat or Promise?

 

After buying nine percent of outstanding Twitter shares recently, Elon Musk has announced his intention to buy Twitter and take it private.  The financial details are still in flux, but two numbers tell the story:  Musk is the world's richest man (estimated net worth north of $200 billion) and the largest money numbers Wikipedia associates with Twitter (assets and equity) are less than one-tenth of that.  So no matter what the SEC, shareholders, and even Twitter's board says or does, it's very likely that if Musk wants to buy Twitter, he'll be able to do it.

 

Then what?

 

On the face of it, why a serial entrepreneur and latter-day Tom Swift like Musk would want to buy a not-very-profitable social media company is not clear.  On Wikipedia's list of the ten most-followed tweeters (I don't use it myself, so excuse the linguistic infelicities if I don't use quite the right words in discussing Twitter), Musk is No. 8, just ahead of Narendra Modi (India's prime minister) and just behind Lady Gaga.  No. 1 is Barack Obama, who more than two years after stepping down from the presidency still has a twitter-hold on 136 million followers.  No. 2 is Justin Bieber, who Wikipedia dryly lists as "musician."  Musk is the only businessman in the top ten, but he's not just a businessman.  He's also an instinctive showman who has somehow managed to retain a teenage boy's "hold my beer and watch this" attitude while transforming whole industries—aerospace and automobiles, in particular. 

 

It's not in Musk's nature to lay out his plans in any coherent news-release way.  But my sense is that he thinks Twitter does too much censorship and suspension of accounts, and maybe also doesn't exploit their position as the globe's largest short-message service of its kind as effectively as they could.  Surprisingly for a company with over 200 million active users (and many more who receive tweets), they lost money in 2021.  So Musk's interest in the firm may be purely financial, and he may think he can just run it better.  If he buys it, he will have the opportunity to find out.

 

Twitter is a novel phenomenon in the history of communications.  Sociologists, political scientists, and historians are still sorting out its manifold effects on society, and many of the intellectual class worry that Musk's takeover bid will make things worse.  They fear that Musk, who has shown libertarian tendencies in the past, will reduce Twitter's efforts to monitor and control its content, as it famously did when it permanently blocked President Trump on January 8, 2021, thus ending what was perhaps the most-watched Twitter account ever. 

 

What is the worst-case scenario for a Musk takeover of Twitter, at least short of him shutting the whole thing down and dissolving the company (which Twitter has done to smaller rivals in the past)?  The greatest fear seems to be that Twitter will turn into some sort of common-carrier technology that literally anyone can use for anything—pornography, incitement to riot, murder threats, you name it. 

 

Twitter already allows pornographic messages but insists on labeling them as such.  So that wouldn't be much of a change.  I can imagine some changes in Twitter's policies that would make the free-for-all prospect less threatening.  I don't know what legal boilerplate one has to agree to in order to use Twitter (and probably nobody but a few lawyers understands it all anyway), but if there was some clause to the effect that Twitter will fully cooperate with any law-enforcement officials in the investigation of illegal doings using Twitter, that would allow the organization to point its fingers at wrongdoers, or at least their accounts.  Tracking down bad guys on the Internet is always hard, but to pretend that Twitter is the main security threat to Internet users is to ignore all the other cybercrime that goes on without it.

 

My point is that right now, Twitter seems to be pretty free, and if Musk made it totally free it would be a rather small and incremental change.  And on the plus side, allowing completely free speech on Twitter would comport better with the First Amendment rights guaranteed by the U. S. Constitution, although technically, as a private company Twitter can (and still could) censor anything and everything it wants to. 

 

Money is power, and we see here a fabulously rich and therefore powerful man attempting to control another center of power, or at least conduit of power, which Twitter as a prominent social-media outlet represents.  But what little I know about Musk tells me that his intentions, while they may have a touch of silliness now and then, are basically benign. 

 

There is a growing trend on the part of some to view certain ideas and discourse as so threatening that it should be suppressed, whether by Twitter censors or some other means.  Those of us raised long enough ago that freedom of speech was presented to us as grade-schoolers in a positive and un-ironic way tend to believe that such freedom is one of the bedrock foundations of U. S. democracy.  And if we start going down the path of censorship—whether it's called that or "stopping disinformation" or "countering fake news"—the consequence will be less freedom and a move toward tyranny. 

 

The technology of the Internet and social media have given rise to something that we as societies are still trying to figure out:  a way of reaching millions or billions of people that is potentially uncontrolled by any central authority.  This is a truly new thing in the world.  Some regimes have decided that Twitter is so bad in its current form that they won't allow it at all.  Russia, China, Iran, and North Korea are on that list, and Nigeria banned it for a year after it deleted tweets from the Nigerian president Muhammadu Buhari. 

 

That list suggests to me that whatever Twitter is doing, the good may well outweigh the bad.  In trying to buy Twitter, I think Musk is only trying to make it better.  And I for one am willing to see what he means by better.

 

Sources:  NPR carried a report on Musk's plans to buy Twitter at https://www.npr.org/2022/04/21/1094020022/elon-musk-twitter-money.  I also referred to a brief piece on the New Yorker website at https://www.newyorker.com/culture/infinite-scroll/why-would-elon-musk-want-to-buy-twitter and the Wikipedia article on Twitter.  For those who do not recognize the reference to Tom Swift, he was a fictional young inventor featured in dozens of novels published by the Stratemeyer Syndicate in the early 1900s aimed primarily at teenage boys. 

Our Unelected Big-Tech Overlords

 

Last week I blogged about how Twitter kicked off @realDonaldTrump, and how decisions like that give the lie to Twitter's claim of common-carrier-like protection against lawsuits granted by Section 230 of the Communications Decency Act.  Normally I like to change topics every week, but this week is an exception. 

 

A week ago today, on Jan. 10, Amazon Web Services shut down its web-hosting services for the social-media network Parler, taking it off the Internet and capping a series of moves by Amazon, Apple, and Google that effectively ended the company's ability to serve its customers.  It was an extraordinary and united show of the power that large tech companies have to censor social-media speech.  Leaving aside for the moment the question of whether the action was justified, it now appears that not only can Big Tech edit content on its own sites as it pleases, it can exert the same editorial power on supposedly independent companies like Parler.

 

The background of this incident is informative.  As Twitter and other mainstream social-media outlets began ramping up their removal and suspension policies, Parler began to attract many of the users who left Twitter for that reason.  The New York Times reported that by Jan. 9, the day before Parler disappeared, it was the No. 1 free app for Apple's iPhones.

 

No matter.  Some things are more important than money.  Last week, Apple and Google announced that they were no longer going to allow Parler to be downloaded to phones with their proprietary operating systems, which meant that while existing customers could still use the service (at least till Jan. 10), nobody new could join.  But when Amazon pulled Parler's plug Sunday, even those apps became useless.

 

The reason given by Apple, Google, and Amazon is that in their view, Parler was not sufficiently monitoring the content of their posts for incitements to violence and crime.  I have no way of judging that, being a non-user of social media myself, but reports that Parler was used to coordinate the Jan. 6 assault on the Capitol in Washington seem credible.  So we will allow that this was a problem. 

 

Reportedly, Apple gave Parler 24 hours on Friday, Jan. 8, to "clean up its act" and remove offending posts, but Parler's efforts were deemed inadequate, and Apple removed Parler from its app store on Saturday. 

 

In a piece in National Review, Wesley J. Smith points out that Big Tech—Apple, Google, Amazon, etc.—are now behaving more like a fourth branch of government than ever.  However tenuously, the three constitutional branches of the federal government—the legislative, the executive, and the judiciary—are beholden to the citizenry of the United States.  But no one elected the leaders of the media giants who can, unilaterally and without breaking any laws, decide that a competing social-media service that is growing rapidly and under the protection of the same Section 230 that allowed them to become what they are today, decide to kill a competitor like Parler in a matter of days. 

 

Historically, the United States has been a haven for freedom of speech.  It was a bedrock principle in the philosophical discussions which led to the founding of the country.  In 1798, seven years after the Bill of Rights was added to the U. S. Constitution, Congress passed and President John Adams signed the Alien and Sedition Acts, which made it a crime to make false statements critical of the federal government.  These acts proved very unpopular, contributing to Thomas Jefferson's victory in the presidential election of 1800, and the acts limiting free speech were allowed to expire by 1801. 

 

Jay Cost points out that tolerating a certain amount of offensive speech is the price of allowing freedom of speech, which is vitally necessary to a self-governed people.  He quotes Madison as saying, "Our First Amendment freedoms give us the right to think what we like and say what we please.  And if we the people are to govern ourselves, we must have these rights, even if they are misused by a minority."

 

The excessive restrictions of the Alien and Sedition Acts were duly removed in keeping with the idea that any significant restriction of free speech is inimical to the free exchange of views that a free citizenry needs in order to govern itself.  Madison realized that certain people would abuse that right, but he regarded it as the price we had to pay in order to avoid suppression of thoughts that the powerful in government disapproved of.

 

I am personally appalled by the execrable and deadly riot at the Capitol, and by anyone who uses the Internet to encourage violence.  But for some time now we have been trying to have our social-media cake and eat it too.  The vaunted freedom of social-media speech is no longer free if those who run the media empires can squash, not only speech on their own systems, but speech on rival companies by shutting them down.

 

One choice is to accept the fact that in order to use social media at all, we will be subject to the consensus censorship of the powerful few who run the "private" sevice providers, and we will simply have to accept whatever they think is right as far as what can be posted and can't be.  This is the direction we are heading.  And it looks to me no different than the regime imposed by the Alien and Sedition Acts, a situation in which anyone who wants to post anything that the powerful firms think goes too far is simply out of luck and can't do it, with no appeal.  Yes, we might agree that letting people organize an attack on the Capitol is not a good idea, but in killing Parler, Apple/Google/Amazon are acting as legislators (making their rules), executives (imposing the rules) and judges (deciding where the rules apply).  And if you don't agree with what they decide, which many of the millions of users of Parler who didn't post objectionable material didn't, well, you are just out of luck.

 

Another alternative is to take Section 230 of the Communications Decency Act seriously, and go only after the individuals responsible for objectionable speech if they violate any laws, or prompt such violation of laws.  That is what Parler more or less tried to do, and you see what happened to them.  As deplorable as much of the material they carried on their system was, Parler was much more in the spirit of Madison's attitude toward free speech.

 

China shows that huge successful economies can thrive under a repressive government that makes people watch everything they say and hauls them off to a concentration camp if they say the wrong thing.  But, as I said, some things are more important than money.

 

Sources:  The New York Times report on the squelching of Parler appeared at https://www.nytimes.com/2021/01/09/technology/apple-google-parler.html.  Wesley J. Smith's editorial on Big Tech appeared in National Review at https://www.nationalreview.com/corner/big-tech-now-the-fourth-branch-of-government/.  Jay Cost's essay on James Madison and freedom of speech appeared in the same journal at https://www.nationalreview.com/2017/09/james-madison-free-speech-rights-must-be-absolute-nearly/.  I also referred to the Wikipedia articles on Parler and the Alien and Sedition Acts.