The International Justice Clinic at the University of California, Irvine School of Law released a report today casting doubt on the lawfulness of a nationwide ban on the popular social media app TikTok under the United States’ human rights obligations.
The report, Necessary and Proportionate? TikTok Bans and American Obligations Under International Human Rights Law, urges U.S. policymakers to ensure that any steps taken to address perceived threats posed by TikTok are compliant with U.S. obligations under the International Covenant on Civil and Political Rights (ICCPR), one of the central treaties in human rights law that the United States ratified in 1992. Considering the millions of Americans who use TikTok to seek, receive, and impart information and ideas of all kinds, the United States government has the burden of showing that a nationwide prohibition on the social media app meets the high standards of human rights law under the ICCPR.
“American policymakers and legislators are increasingly calling for a ban on TikTok,” said the authors, UCI Law students Celine Gruaz ‘24 and Gabriel Lazo ‘24. “We get it. There are widespread fears about surveillance, data collection, manipulation and espionage by the Chinese government. Our report tries to make the point that, whatever the grounds for restrictions, the government must demonstrate that they meet tests of legality, legitimacy and proportionality.”
The report highlights that a ban or restriction on TikTok—in effect, a ban on American individuals’ use of the platform to exercise their rights to free expression—runs counter to longtime U.S. policy.
“The United States has long criticized other governments for their restrictions on websites and social media applications, from Facebook to Twitter to YouTube and Wikipedia, among others,” said Professor David Kaye, director of the International Justice Clinic. “U.S. officials should turn the spotlight they typically direct against others toward themselves and rigorously review any potential restrictions according to human rights law. We fear that anything less would incentivize a new wave of global internet restrictions.”
The report notes that other steps may be available to address concerns about privacy and Chinese government access to American data. “Ultimately, domestic data privacy laws applicable to all social media platforms,” said Hinako Sugiyama, UCI Law’s Digital Rights Fellow, “would likely better serve the asserted interests in the TikTok debate over the kinds of restrictions proposed by Congress.”