Lawmakers: Ban TikTok to Stop Election Misinformation! Same Lawmakers: Restrict How Government Addresses Election Misinformation!

Notably, the specific posts they discuss in their brief include, among other things, posts the U.S. government suspects are foreign election interference. For example, the case includes allegations about the FBI and CISA improperly communicating with social media sites that boil down to the agency passing on pertinent information, such as websites that had already been identified by state and local election officials as disinformation. The FBI did not request that any specific action be taken and sought to understand how the sites’ terms of service would apply.

As we argued in our amicus brief, these communications don’t add up to the government dictating specific editorial changes it wanted. It was providing information useful for sites seeking to combat misinformation. But, following an injunction in Murthy, the government has ceased sharing intelligence about foreign election interference. Without the information, Meta reports its platforms could lack insight into the bigger threat picture needed to enforce its own rules.

The problem of election misinformation on social media also played a prominent role this past week when the U.S. House of Representatives approved a bill that would bar app stores from distributing TikTok as long as it is owned by its current parent company, ByteDance, which is headquartered in Beijing. The bill also empowers the executive branch to identify and similarly ban other apps that are owned by foreign adversaries.

As stated in the House Report that accompanied the so-called “Protecting Americans from Foreign Adversary Controlled Applications Act,” the law is needed in part because members of Congress fear the Chinese government “push[es] misinformation, disinformation, and propaganda on the American public” through the platform. Those who supported the bill thus believe that the U.S. can take the drastic step of banning an app for the purposes of preventing the spread of “misinformation and propaganda” to U.S. users. A public report from the Office of the Director for National Intelligence was more specific about the threat, indicating a special concern for information meant to interfere with the November elections and foment societal divisions in the U.S.

Over 30 members of the House who signed the amicus brief in Murthy voted for the TikTok ban. So, many of the same people who supported the U.S. government’s efforts to rid a social media platform of foreign misinformation, also argued that the government’s ability to address the very same content on other social media platforms should be sharply limited.

Admittedly, there are significant differences between the two positions. The government does have greater limits on how it regulates the speech of domestic companies than it does the speech of foreign companies.

But if the true purpose of the bill is to get foreign election misinformation off of social media, the inconsistency in the positions is clear.  If ByteDance sells TikTok to domestic owners so that TikTok can stay in business in the U.S., and if the same propaganda appears on the site, is the U.S. now powerless to do anything about it? If so, that would seem to undercut the importance in getting the information away from U.S. users, which is one the chief purposes of the TikTik ban.

We believe there is an appropriate role for the government to play, within the bounds of the First Amendment, when it truly believes that there are posts designed to interfere with U.S. elections or undermine U.S. security on any social media platform. It is a far more appropriate role than banning a platform altogether.

David Greene is Senior Staff Attorney and Civil Liberties Director at EFF.Karen Gullo is an award-winning former journalist working as an analyst and senior media relations specialist at EFF. This articlei s published courtesy of the Electronic Frontier Foundation (EFF).