The Record: Congress picked a direct fight with ByteDance and TikTok. The privacy implications are less clear. 

Privacy advocates also say the government’s action is unconstitutional because it threatens First Amendment rights to freedom of expression as well as U.S. citizens’ autonomy to use the technology they want as they see fit. 

The Supreme Court weighed in on this idea in the 1969 obscenity case Stanley v. Georgia, John Davisson, director of litigation at the Electronic Privacy Information Center, said via email. 

He cited a section of the court’s opinion — ruling that it is unconstitutional to stop Americans from keeping obscene materials in their homes — that seems to undercut the TikTok legislation. 

“Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home,” the opinion said. “If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.”  

Davisson said that decision doubtlessly applies to the TikTok law because of how it interferes with individuals’ “private consumption of information (not to mention your personal choices of who to associate with).” 

He called the TikTok law and the government’s focus on China seizing Americans’ data “privacy scapegoating.” 

“We should absolutely be concerned about the misuse of TikTok users’ data, but the problem is so much bigger than one company,” Davisson said. “Without robust privacy rules that apply industry-wide, there’s little stopping businesses and governments from buying the same kinds of information from data brokers that TikTok collects from consumers.” 

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