Digital Public Square at Risk
Government Banning of Social Media Apps Threatens the Digital Arena of Public Discussion and Civic Participation
A new bill introduced by Senator Marco Rubio titled "Averting the National Threat of Internet Surveillance Oppressive Censorship and Influence and Algorithmic Learning by the Chinese Communist Party Act," abbreviated as the "ANTI-SOCIAL CCP Act," is crafted to address the vulnerabilities introduced by foreign-controlled social media enterprises. These platforms pose risks of surveillance on American individuals, acquisition of delicate information, or the spreading of state-backed propaganda and censorship agendas.
Under this Act, it is incumbent upon the President to employ the authorities conferred by the International Emergency Economic Powers Act (IEEPA) to embargo and forbid any dealings connected to the assets and property interests of specified social media corporations. The criteria for identification include firms based in, or operating under the aegis of, nations deemed as threats, or those influenced by entities of concern, utilizing restricted technologies or algorithms, or significantly impacted by a foreign nation in ways that affect data handling or content management related to citizens of the United States.
The legislation carves out exceptions for intelligence endeavors and the import of commodities, alongside enforcement and sanction protocols in harmony with the IEEPA. Explicitly, it designates Bytedance Ltd., TikTok, and any affiliates or successors as entities fulfilling the outlined criteria until proven otherwise.
The term "country of concern" is delineated akin to the Secure and Trusted Communications Networks Act of 2019, incorporating countries such as China, Russia, Iran, North Korea, Cuba, and Venezuela. "Entity of concern" includes governmental units, military establishments, principal political factions, influenced personalities, and corporations within these territories. The definition of a "social media company" is grounded in its operational magnitude, user interaction, and the ability to disseminate content, with exclusions for platforms narrowly focusing on product or business evaluations, travel data, or emergency notifications.
The constitutional deliberations triggered by the ANTI-SOCIAL CCP Act unravel the intricate dynamics between safeguarding national security, preserving freedom of speech, regulating international trade, and delineating the powers distributed across the U.S. government branches. Any judicial examination of the Act necessitates a judicious equilibrium among these divergent considerations, potentially establishing critical benchmarks for the governance of digital mediums and the employment of economic embargoes aimed at national security objectives.
First Amendment Implications: The primary constitutional concern involves the possible encroachment on First Amendment freedoms. Targeting social media avenues, pivotal for free expression and dialogue, any limitation or proscription might be perceived as state censorship, hindering the open circulation of thoughts and information.
Fifth Amendment and Due Process: Challenges may also arise over due process rights. Enacting sanctions and obstructing transactions absent a lucid, precise criterion for defining control or influence by a foreign power could appear arbitrary. Affected entities and persons may contest that the Act fails to offer adequate notification or a definitive benchmark for identifying sanction-triggering behaviors or affiliations.
Commerce Clause and International Commerce: Additionally, the Act engages with matters pertinent to the Commerce Clause, which empowers Congress to regulate trade with foreign nations. Although Congress possesses extensive authority in this realm, the Act's deliberate targeting of social media firms based on foreign ties and potential influence operations may provoke scrutiny concerning its compatibility with free trade principles and international commerce regulation.
Executive Authority and IEEPA: The Act aims to utilize the President's powers under IEEPA, broadening the range of actions against social media firms on national security grounds. While IEEPA's application for national security purposes is established, extending it to social media platforms tests the boundaries of executive power in managing commerce and expression on national security grounds.
International Diplomacy and Reciprocity: At a broader scale, the Act may impact the United States' diplomatic relations, especially with China. Measures enacted through this legislation could incite reciprocal actions against American companies, potentially heightening tensions and influencing global cooperation on wider issues.
Public Square Dynamics of TikTok: Beyond its entertainment value, TikTok has evolved into a modern version of the public square, serving as a dynamic forum for policy discourse and public debate. At any moment, the platform is alive with hundreds of live broadcasts where public policy is debated vigorously, alongside tens of thousands of short-form videos addressing critical policy issues. This engagement highlights the platform's role in facilitating a broad spectrum of political and social discussions, underscoring its importance in the digital age's civic landscape.
The constitutional discussions regarding the ANTI-SOCIAL CCP Act lay bare the nuanced interconnection between national security, free expression, global trade, and the division of powers within the American governance structure. Legal contestations against the Act would compel courts to mediate these competing interests, potentially forging pivotal precedents for digital platform regulation and the strategic use of economic sanctions for national security ends.