EDITORIAL: The Constitution should not protect theft of personal data

TikTok claims to be a powerful influence in the U.S. with 170 million users. The social media platform demonstrated that power dramatically last week, though not quite in the way its owners may have wanted, by accomplishing something thought to be virtually impossible. TikTok united the bitterly polarized U.S. Congress.

Democrats and Republicans in the House of Representatives came together in a rousing show of bipartisanship with 352-65 vote to pass a bill that would ban TikTok in the U.S. unless it is sold by its Chinese owners within five and one-half months.

The legislation, with Wisconsin’s Rep. Mike Gallagher, Republican from Green Bay, as its leading advocate, was driven by fears that the platform, with its power to control information and disinformation, is a threat to the U.S. in the hands of a Chinese company with close ties to the Beijing regime.

Given the demonstrated ability of social media to manipulate public opinion, even to the point of influencing elections, the concerns about TikTok are not unfounded. Those worries are exacerbated by the relentless and successful efforts of social media platforms to collect the personal data of their users. In the case of TikTok, many of its users are children and teenagers attracted by its video fun features.

TikTok might be a threat, but apparently not with its ability to lobby Congress. To fight the legislation, the platform encouraged its users to call representatives to urge them to vote against the TikTok bill. Congress members were deluged with phone calls from angry adults and, in large numbers, children begging them not to take away their electronic TikTok toy. In a reverse reaction, this succeeded only in perturbing the targeted members of Congress, while providing a vivid demonstration of the app’s feared power to mold public opinion.

Congress seemed to enjoy the opportunity to, in effect, poke a stick in China’s eye, but it hasn’t shown similar enthusiasm for dealing with a social media issue that is more worrisome than TikTok’s foreign ownership. It hasn’t done anything to regulate what social media companies do with the enormous trove of private data they vacuum up from platform users without their permission.

The U.S. Supreme Court is going to have something to say about that in the next few months, and it may determine whether the privacy of social media users will ever be protected.

The court will decide whether a Texas law that forces social media to carry content it finds objectionable violates the First Amendment. At first glance, it looks like an easy decision. The law was triggered by social media’s banning of posts by former President Donald Trump following the Jan. 6 attack on the Capitol based on the fear they could incite further violence. The Texas law limits the platforms’ ability to ban objectionable material and requires them to carry political posts the state defines as acceptable.

It should be obvious that government should not be able to control the content of information media, but there’s a caveat here. The social media giants arguing the Texas law is unconstitutional, the likes of Facebook, Instagram, YouTube, WhatsApp and TikTok, are claiming absolute protection by the First Amendment of not only the content they carry, but also their collecting of personal data. They are saying freedom of speech confers on them a shield of immunity against any form of regulation.

Social media platforms select the content they allow users to post, and for the most part it’s good that they do. Facebook, for example, restricts bullying, harassment, violent content and hate speech. But in doing that, they claim the status of newspapers and equate their selection of information with editing.

The tech companies are not newspapers or any form of news organization. They are places for anyone to reach out to the world and say anything subject to the platforms’ terms of use. Even with what they call “editing,” the platforms are rife with false and misleading content contrived by various sources to provoke audience responses. Meanwhile, the social media giants harvest personal data for profit.

The First Amendment should not be commandeered to prevent the enacting of rules that prohibit companies from exploiting data they collect surreptitiously from platform users.

The Supreme Court justices have their work cut out for them in preserving social media’s right to restrict content while not granting the companies the First Amendment immunity they seek.