Written by Dennis Hetzel, published on January 27, 2024 , last updated on May 7, 2024

TikTok Bans and Regulation

Several states have barred the TikTok app on government-issued phones and devices out of concern about the Chinese ownership of the video-sharing app. Others have tried to bar TikTok from being offered to users in its state or sued TikTok under their consumer protection laws. Restrictions on the social media company raise free speech questions. (iStock image)

It’s no exaggeration to use the term “exploding growth” if you’re referring to TikTok, a social media, content-sharing platform that has gone from zero to more than 2.5 billion worldwide users, including an estimated 150 million or more in the United States, in less than six years.

The platform showcases short-form user videos. While younger users sparked much of its early popularity, TikTok has grown far beyond that. Research suggests that TikTok has been downloaded more than 4.5 billion times and reaches more than half of U.S. adults. Users spend, on average, almost an hour a day on the platform, making it an increasingly attractive place for advertisers and other revenue-generating content.

For many in the general public, the first time TikTok’s “stickiness” became apparent was in 2020 when Idaho potato worker Nathan Apodaca uploaded a video of himself lip-syncing to Fleetwood Mac’s song “Dreams” as he skateboarded down a highway drinking Ocean Spray Cranberry Juice The video went viral with more than 50 million views in a matter of weeks, prompting sales surges, free publicity for Ocean Spray, about 8 million uploaded streams of “Dreams” in a week, and more than 7,000 purchases of the classic-rock song.

TikTok's Chinese ownership raises concern about data stealing 

That’s the fun side of TikTok. Meanwhile, success has brought more than just the well-documented problems that TiKTok shares with other social media platforms, such as the spread of false information and underage users. TikTok’s parent company, ByteDance Ltd., is based in Beijing with Chinese ownership, leading multiple countries and states to impose bans or tightened regulation out of concern that the Chinese government will access user data and manipulate content feeds. TikTok critics say manipulations could easily include misinformation campaigns into United States by the Chinese government and slanted content designed to promote certain candidates and undermine democratic institutions. TikTok says that the Chinese government is not accessing its data nor has such intentions.

Efforts to ban or regulate TikTok have taken multiple approaches. Some efforts have been criticized as unconstitutional speech restrictions under the First Amendment or as an effort by government to control the content on a privately owned platform.

Laws barring TikTok based on four main concerns

Laws restricting TikTok are based on four main concerns:

  1. Protection of children and the ease at which they can join TikTok and access inappropriate content
  2. Consumer protection and data privacy
  3. Use of the platform to spread disinformation and lies
  4. Slanted content designed to promote Chinese government interests potentially at odds with U.S. national security

Multiple U.S. states and the federal government have banned the use of the TikTok on government-issued devices such as cellphones and tablets. For example, Texas public university employees lost in litigation arguing that such a ban inhibited the ability of professors to teach about social media and TikTok’s specific impact. 

TikTok fined for data breaches of users

Some damaging revelations about TikTok have increased concerns. In September 2023, the European Union fined TikTok $368 million for alleged data breaches regarding information about minors. TikTok said it had already fixed any issues that led to the fine.

In December 2022, TikTok’s owner, ByteDance, disclosed that four of its employees had improperly accessed information of some American accounts. In response, as reported by Bloomberg News, TikTok has raised the profile of its U.S. headquarters in Los Angeles, opening a transparency center and partnering with Oracle Corp. to store its U.S. user data.

Discussions about ByteDance selling all or part of its U.S. TikTok operation also have been reported, but no ownership change has occurred. For example, in 2021 there were reported discussions about Oracle and Wal-Mart taking ownership in a complex transaction.

Montana adopts law to bar TikTok from being offered in its state

Montana became the first U.S. state to attempt to ban TikTok in a law passed in May 2023. A judge temporarily halted the law from going into effect after TikTok filed a lawsuit arguing that the ban constituted prior restraint on speech, which is unconstitutional under the First Amendment. The state says it plans to appeal.

Legislators and the governor argued that the law was aimed at protecting consumer privacy, children and national security based on potential manipulation of content and user data by the Chinese Communist government. 

The federal district court found that the state failed to provide evidence to bolster its case on data privacy concerns and noted that Montana’s data privacy laws already provided a means to address data breaches. 

The law would work by fining app providers such as Apple and Android/Google $10,000 a day if they offered TikTok to Montana users. 

Montana’s national security argument raises two issues: First, how far can government go to assert that national security concerns overcome free speech rights on a social media platform? Second, can any state legislature use national security as a rationale for regulation of a federal responsibility? 

Montana Gov. Greg Gianforte and others argue that the regulation is source-based and targeted at China but is content-neutral, thus removing one First Amendment objection. However, critics say that the law's child-protection restrictions are content-based and therefore unconstitutional under the First Amendment.

States bar TikTok on government devices, college computer networks

Other bans by federal, state and local governments of the TikTok app on government-provided devices appear to have passed legal scrutiny thus far. At least 44 states have implemented variations of TikTok app bans on government devices – as well as bans on other apps seen as problematic.

In North Carolina, for example, a state employee can be fired for putting TikTok on a device. Other Chinese-related apps such as WeChat have been banned on government devices in states such as Ohio. New Jersey has banned use of the Russian-based virus-protection app Kaspersky.

As a possible reaction to political pressure to block TikTok, at least 12 state higher-education systems, including the University of Georgia and University of Texas-Austin, have not only banned TikTok from government-provided devices, they’ve blocked the app from campus computer networks, meaning that students and faculty cannot use TikTok on the school’s network, even with their own devices.

A court in Texas found that such bans may be constitutional, noting that users interested in TikTok still had other ways to access the app. Arguments by professors that the ban inhibited their ability to teach about the same issues that concerned legislators didn’t sway the court. 

States challenge TikTok through consumer protection laws

Indiana was the first state to challenge TikTok through civil litigation under its consumer protection laws, filing two lawsuits in 2022 alleging that TikTok didn’t do enough to protect children from mature content and that the Chinese government had a clear ability to access TikTok’s user data, algorithms and other features. 

“The TikTok app is a malicious and menacing threat unleashed on unsuspecting Indiana consumers by a Chinese company that knows full well the harms it inflicts on users,” Indiana Attorney General Todd Rokita said in a prepared statement. “With this pair of lawsuits, we hope to force TikTok to stop its false, deceptive and misleading practices, which violate Indiana law.”

A state judge dismissed Rokita’s lawsuit against TikTok on multiple grounds. The IndyStar reported that “a federal judge … slammed the case as ‘irrelevant posturing’ and ‘hyperbolic allegations.’”

In January 2024, Iowa became the latest state to sue TikTok, claiming the platform did not do enough to protect children 13 and under from content such as explicit sexual material, self-harm and drug use. Arkansas and Utah also have similar lawsuits pending, according to the Associated Press.

Congress introduces bills aimed at restricting TikTok

Beyond administrative rules against using TikTok on government devices, a bipartisan bill was introduced in Congress in February 2023 that would empower the U.S. government to ban or force the sale of foreign-owned applications that are deemed a threat to national security. 

Several other TikTok-related bills are pending in Congress as well. Critics such as the American Enterprise Institute oppose legislation that would ban TikTok from all U.S. devices, not just government-issued devices, saying such a law would face serious First Amendment issues. 

As of January 2024, none of the pending bills had moved past the stage of being introduced and referred to committees.

The U.S. Supreme Court is expected to rule in 2024 on several cases involving social media platforms. However, the cases don’t deal with some of the specific concerns, such as national security and shielding data from foreign governments, that apply to TikTok. The cases focus on the rights of public officials to block users from their social media pages and by Republican-dominated state legislators to make it harder for social media platforms to reject content that the platforms say violate their rules. Conservatives claim that users are being censored based on their political viewpoints. 

The outcomes will affect TikTok, however, and could clarify a potential First Amendment collision between the rights of third parties who post to the platforms and the free speech rights of the platforms themselves. The First Amendment is designed to limit government from restricting speech and other rights. 

The Associated Press recently listed 15 countries, from Afghanistan to the United Kingdom, that have banned TikTok in various forms. The European Union and Canada, among others, have followed the U.S. in banning the use of the app on government-issued devices.

This article was written by Dennis Hetzel. Hetzel was a reporter, editor, newspaper publisher and journalism professor before becoming executive director of the Ohio News Media Association and president of the Ohio Coalition for Open Government, where he worked extensively on open government and First Amendment legal issues. 

How To Contribute

The Free Speech Center operates with your generosity! Please donate now!