George Mason Professor of Internet Law Carl Szabo joins Caroline Hyde to discuss the legal and logistical implications of Montana's TikTok ban, the first US state to do so across all phones and why he's worried by this move.

Montana

U.S Congress is debating a total ban of the popular social media app TikTok amid suspected links to China.

TikTok Ban

Legal implications of a TikTok ban

I'm going to hazard a guess here, Carl, that you're pretty anti what we're hearing from the governor and Montana more broadly today. Yeah. Thanks for having me on. This is something that should scare all of us because this is exactly what we don't want the government to do and what the government can't do. It can't decide what Web sites we can visit and what apps we can download. Imagine if the government of Montana came out and said you can no longer go to Bloomberg dot com. Of course everyone would be apoplectic. But that's exactly what we're seeing here with Tick Tock. At the end of the day what we are ultimately going to see is a legal challenge on this because this is a clear violation of the First Amendment. The government can't ban speech which is exactly what this is. Simultaneously there is a clear violation of something called a bill of attainder. It's a legal term that we use all rarely where you can't criminalize an individual. And that's exactly what you're seeing here. So this is a slam dunk case of unconstitutionality. But more importantly it's a dangerous precedent against free speech free expression and free enterprise in the freest nation in the world. Remind us why thus far they've been able to ban them on government funds. Yeah. The bans on government phones. I actually don't have any issue with an employer. Many employers are watching this program right now and we all have rules and restrictions on what our employees can and cannot do on their own company devices. And we can say well you can't go to this Web site. You can't download that app. And so the government is perfectly free to do that for their own employees federal employees state employees local employees. In fact as a taxpayer I don't see any reason why government employees should have Tick Tock on their government devices because when I'm paying their salaries as a taxpayer I expect them to be working not producing Tick Tock videos not watching entertainment videos. So that's why the government can do it on their own devices. But it is very different from the government then coming in telling me telling you telling everyone else out there what Web sites they can visit and what apps they can download on their own personal devices. So as you say and you've come out saying this is unconstitutional Tick Tock has come out saying that it's against free speech legal arguments abound. But it does put the owners back on the federal government. And what is currently being debated by the administration to either ensure that national security is preserved or indeed curtail Tick Tock within the United States. More broadly is there any way that the federal government could enact this do you think. The thing at the federal level is Tick Tock is kind of a distraction. It's fig leaf. A lot of lawmakers don't want to have an important necessary discussion on the U.S. dependency on China national security cybersecurity or privacy. But there is legislation today before Congress that they could look to do. They could create a national standard on cybersecurity. They could look to create a national standard on privacy laws. And what this will do is it will protect all Americans regardless of whether an attack is coming from outside the U.S. or from within. Let's remember some of the biggest data breaches in U.S. history came from inside the U.S. whether it was solar winds in Texas whether it is the hack last month of the health information of members of Congress or whether it was a government employee deciding to dump all of our secrets about Ukraine onto the Internet to impress their friends. So we need to harden our critical infrastructure regardless. And focusing on one business one entity one nation distracts us from the important work that Congress must do to harden these critical infrastructures and make us all safe. More broadly when you're looking abroad at what's occurring we are seeing other countries UK for example also banning on government devices. Is there anywhere that is thinking that they have to curtail certain social media apps because in this of course discussion that's been leveled by Montana they don't just mention tick tock. They also mention other bite down bite down apps. Cap cut lemonade. But also there's telegram which they sort of see having a link to Russia. So there is certainly one nation that is in the business of deciding what Web sites and what apps it's citizens can use. And that's China. They have the great firewall where if it if the CCP doesn't like what you're saying the citizens can't see it. It's a horrible model for the rest of the world. It is the antithesis of what America stands for. So I expect the US to lead the way to reject bans on speech reject bans on apps and push the notion that citizens and free people should be able to decide what is or is not appropriate for them. Because at the end of the day if I have concerns about tick tock I just don't I just won't use it. I'll use something else. And that's the freedom of choice. That's the freedom that we have here in America. And unfortunately in Montana that freedom is being taken away from its citizens. Very briefly of course your associate association members are ticked top. They're also Amazon. Airbnb Etsy Meta and a number. Do your association members currently feel that regulation in the US is working for them or against them. You know across the board naturally is out there fighting every single day to plow the field for free expression free enterprise. And we are all behind the notion of creating a national standard on things like privacy law or cybersecurity law. Because at the end of the day what that will do is secure Americans. And more importantly it will make it easier for Americans to know how their privacy is treated how their data is treated. And for businesses out there it gives them a simple easy one standard to follow which drives down costs of business of compliance and makes it easier to spend that money on innovation. We need innovation at the speed of technology not at the speed of government. And that's what we all agree on.

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TikTok Ban