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Throwing stones in a glass House of Representatives

Recently, the U.S. House of Representatives voted overwhelmingly (352-65) to pass a law that would ban TikTok in the U.S. unless its owners sell the company.  Legitimate concerns over the current ownership’s ties to the Chinese government prompted the measure, which now is with the U.S. Senate, where its prospects are unclear.

Chinese national security laws require Chinese-owned companies to assist the government in intelligence-gathering.  With about 150 million American users, the opportunity for a foreign adversary to digitally surveil and manipulate American citizens raises serious foreign and domestic policy questions.  To properly answer those questions requires serious introspection.

Our own government’s recent history of collusion with private companies to surveil American citizens, suppress dissent, and de-bank individuals and organizations based on disfavored political or religious ideology raises the question: if TikTok ended up under American ownership, would its users simply be jumping out of the wok and into the fire?

Two cases argued at the U.S. Supreme Court on March 18, Murthy v. Missouri and NRA v. Vullo, demonstrate that our federal and state governments are not immune to authoritarian impulses.

In Murthy v. Missouri, the Biden administration stands accused of a coordinated campaign to induce social media companies to censor what it deemed “misinformation” about COVID-19 and vaccines.  During oral argument, the justices seemed to struggle with how to determine if the government’s action implicated the First Amendment, since the social media companies were apparently eager to cooperate.  Without a hint of irony, Justice Ketanji Brown Jackson told the attorney for Missouri and Louisiana that her biggest concern “is that your view has the First Amendment hamstringing the government.”  If the government can outsource censorship to the private sector, thus creating an end-run around the First Amendment, should it matter whether the private sector acted under coercion or as a willing co-conspirator?

NRA v. Vullo raised similar concerns at the state level.  The National Rifle Association presented its case against the former superintendent of the New York Department of Financial Services, Maria Vullo.  The NRA contends that Vullo used her position and her agency’s regulatory power over banks and insurance companies to force them to deny services to the NRA for its political views.  Vullo vociferously criticized the NRA’s defense of Second Amendment rights and urged private companies to “sever ties” with them.  It is unsurprisingly difficult to advocate for the Second Amendment without the First Amendment.

In the week prior to these two U.S. Supreme Court hearings, the U.S. House Judiciary’s Select Subcommittee on the Weaponization of the Federal Government released an astonishing report that detailed how officials at the U.S. Treasury Department’s Financial Crimes Enforcement Network colluded with America’s largest banks, including Bank of America, JP Morgan Chase, Wells Fargo, and others, to monitor their customers’ financial transactions in search of potential domestic terrorists.  Among the suggested criteria were transactions with stores like Cabela’s and Dick’s Sporting Goods; purchases of “religious texts”; and so-called “hate groups” otherwise known as religious and conservative organizations like Alliance Defending Freedom, Family Research Council, Pacific Justice Institute, Liberty Counsel, and Ruth Institute.

The myriad federal regulations on American financial institutions provide more than enough of a threat to coerce them into actions on behalf of the government that the government cannot do itself without running afoul of the Constitution.  Coupled with the positive incentive of taxpayer-funded financial bailouts when banks that are “too big to fail” do just that, the federal government has both carrot and stick.

It remains to be seen if the U.S. Senate will follow the House’s lead in forcing a foreign company to divest from a foreign government or face a national ban.  The bill may very well be the least objectionable among a variety of bad policy options.  Regardless of whether our government intervenes in the market to protect Americans from a foreign surveillance state, it must certainly take a long look in the mirror at its own.  This bill is an awfully big stone to be throwing around our glass House.

Lathan Watts is vice president of public affairs for Alliance Defending Freedom (@ADFLegal) and earned his juris doctor degree from the University of Mississippi.

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