Does The First Amendment Protect Chinese Espionage? | Opinion

James Madison authored the free speech clause in the First Amendment as a bulwark against government influence over what we can see and say.

But what happens when a foreign government usurps it to engage in espionage against American citizens? Because that's precisely what the Chinese government is doing to keep TikTok in our markets.

Let's be frank. The Chinese government is using TikTok to spy on Americans. Director of National Intelligence Avril Haines and FBI Director Christopher Wray have said as much. TikTok's parent company ByteDance has admitted to tracking at least two U.S.-based journalists. Other reports show that ByteDance had planned to use TikTok to monitor specific American citizens. And eight different TikTok U.S. employees explained having to repeatedly turn to Chinese colleagues because U.S. staff "did not have permission of knowledge of how to access [U.S. user] data on their own." Meanwhile, the U.S. Department of Justice is investigating this spying.

Against this background, Montana passed a law that requires ByteDance to divest itself of TikTok for the app to operate in the state. This measure is consistent with calls from both the Trump and Biden administrations and a bipartisan group of congressional members seeing the blatant national security concerns TikTok poses.

And yet, two weeks ago, a federal court blocked Montana's law. Why? The court's 48-page decision is a bit complicated. The judge appeared to admit that the measure regulates conduct, not speech, but nonetheless found the First Amendment "implicated" in Montana's law. He reasoned that the law violated the First Amendment because Montana supposedly has no substantial interest in protecting its citizens against foreign espionage and the law doesn't leave "ample alternative channels for communication."

Lots to unpack here.

Let's deal first with the court's holding that protecting its citizens from foreign espionage "is not an important Montana state interest." This is a legal holding, so evidence is irrelevant for the court. Which means that, even if Montana had direct evidence of the Chinese government spying on its citizens or officials, the state would have no important interest in stopping it and thus could do nothing about it. This notion is plainly absurd.

Next consider the holding that Montana's law does not leave open "ample alternative channels for communication" because it silences all speech on TikTok. To reach that result, the court had to ignore the fact that the law doesn't prevent users from expressing the same speech on Instagram. Or Snapchat. Or X. Or Pinterest. Or Tumblr. Or YouTube. Or Foursquare. Or Reddit. Or Rumble. Or Discord. Or Signal. Or Mastodon.

Even the court's decision to apply constitutional scrutiny because of First Amendment "implications" is quite the head scratcher. For one thing, our government has banned communications systems before, with no First Amendment concerns. Take the telecom market. Congress passed the Secure and Trusted Communications Network Act of 2019, which directed the Federal Communications Commission to remove equipment associated with national security threats from American networks. Accordingly, the commission relied on the views of national security experts and banned Huawei from selling any more telecommunications equipment to rural customers who rely on federal subsidies. In a similar vein, the commission has revoked the ability of Chinese-affiliated carriers China Telecom, ComNet, and Pacific Networks from interconnecting with American telecommunications networks and operating in the United States.

The court's decision here opens the door for known Chinese government affiliates or Russian technology companies to spy on our citizens using our First Amendment as a shield. And they will do it. As Senators Tom Cotton (R-Ark.) and John Cornyn (R-Tex.) rightly note, "Huawei doesn't operate independently of its government, but even if it did, it would still be subject to Chinese laws that require companies to fully cooperate with its intelligence services."

The same is true for TikTok so long as ByteDance is its parent company. After all, ByteDance has had an internal party committee as part of its governance structure since 2017 to ensure alignment with Beijing's policies. And TikTok CEO Shou Zi Chew previously served as president of international operations for Xiaomi Technology, a software developer the Pentagon considers a "Communist Chinese military company."

But according to this court decision, no state has any legitimate interest in protecting its citizens from Chinese espionage. No American social media company can substitute for TikTok. And every regulation of a social media platform or communications system "implicates" the First Amendment.

In other words, James Madison's tool against government interference in the free marketplace of ideas has become a sword for foreign governments to spy on the American people and a shield to protect foreign agents from scrutiny. This cannot be the law.

Joel Thayer is president of the Digital Progress Institute and an attorney based in Washington, D.C. The Digital Progress Institute is a nonprofit seeking to bridge the policy divide between telecom and tech through bipartisan consensus.

The views expressed in this article are the writer's own.