Social Media Portal: Is That Legal?

The "Protecting Americans from Foreign Adversary Controlled Applications Act " has a name that will make your eyes glaze over and your brain circuitry start to criss-cross. But, make no mistake about it, the TikTok ban bill's uncertain journey through our U.S. government's legislative, executive and judicial branches has the potential to be a historically monumental one in this short but rapidly-evolving era of social media. Even if we've kinda-sorta seen this song and dance before , any piece of federal parchment paper that would completely turn the faucet off on a daily content stream now used by 170 million Americans is significant.???

But, before carts get put before horses, is this whole thing even above board constitutionally-speaking? Unfortunately, I'm no legal scholar. Far from it. However, Elettra Bietti most certainly is. An expert on?the regulation of digital technologies, data and digital platform intermediaries, Bietti joined Northeastern in 2023 as assistant professor of law and computer science within the School of Law and the Khoury College of Computer Sciences.??

Our full Q&A on the TikTok of it all below. Class is now in session...

ZW: By a 352-65 vote, the House of Representatives passed a bill in mid-March that would prohibit TikTok from U.S. app stores unless the social media platform is spun off from its Chinese parent company, ByteDance. The bill would give ByteDance 180 days to sell TikTok. If not divested by that time, it would be illegal for app store operators such as Apple and Google to make it available for download. What's next?

EB: What is next is that the bill needs to pass the Senate too. That path is uncertain . If the bill does succeed, President Biden has already declared that he'd be happy to sign it into law.?

It should be noted that another bill targeted at "foreign adversaries" also made it through the House in the past few weeks. This one prohibits brokers from selling the data of American citizens to any "foreign adversary" country or any entity controlled by these countries. This bill was passed with a unanimous vote of the House and has a greater prospect of succeeding in the Senate. It is similarly motivated by national security interests, not the interests of American citizens in meaningful protections against their government or tech companies within their territory.

ZW: Should the bill be signed into law, it is expected that TikTok would try to overturn it in the courts. What constitutional red flags does this legislation present, particularly as it relates to the First Amendment?

EB: The bill raises a number of constitutional red flags.

Most importantly, a potential ban of TikTok would lead to users as well as merchants and producers of content to slowly lose their accounts, following and livelihoods.?

TikTok has approximately 170 million U.S.-based users. Of these, approximately 100,000 are influencers and a section of them make a substantial part of their living through their TikTok account.

A ban would lead to the company not being able to push updates to current U.S.-based users making their accounts increasingly unusable. This would mean that all the users, influencers and producers of content that rely on TikTok for their livelihood would no longer be able to use their accounts to express themselves. This of course would undermine their speech interests, and they consequently would have a claim that the TikTok bill violates their First Amendment rights.

Further, the U.S. affords extensive speech protections to companies under the First Amendment, as is notable in cases such as Citizens United or IMS v. Sorrell . The current NetChoice litigation in front of the Supreme Court may clarify some of these protections when it comes to speech platforms like TikTok. For instance, it may rule that speech platforms are comparable to media publishers and thus have special autonomy and special protections against government interference under the First Amendment. This means that TikTok itself has First Amendment rights which it could claim the government breached by passing this bill.

Overall, this kind of law seems hard to sustain against First Amendment challenges, even if it were to be passed by both the House and the Senate.

ZW: Is there any legitimacy to the contention of lawmakers who are supporting the bill that TikTok's ties to China pose more of a data privacy threat and national security risk than other social media platforms? Why do you feel TikTok is being singled out??

EB: I honestly think a lot of these concerns are overdrawn. I think there are reasons why the U.S. government feels threatened by the lack of control they have over TikTok, both from a data flow perspective and from the standpoint of content moderation. The U.S. can exert pressure on U.S.-based tech companies in a number of ways but it cannot exert the same type of pressure on a foreign-owned company like TikTok. That likely concerns the U.S. government.

From a privacy perspective, the data of American individuals is collected, used and abused by a multitude of actors every day all of the time. Bad actors from any number of jurisdictions can tap into the open internet, they can access Western platforms by using VPNs, anonymous accounts and various other techniques. They can infiltrate people's laptops, spy on users and intrude in countless ways. There is no reason why Americans will or should feel safer in regards to the integrity of their data and of their digital experiences after a TikTok divestment or ban. TikTok is a very tiny tip of a much larger surveillance capitalist iceberg.

ZW: Would the sale of TikTok by ByteDance to a U.S.-based buyer actually resolve the data privacy and security concerns that are fueling the bill?

EB: As I said, I don't think the bill meaningfully addresses privacy and security concerns. I think it may solve some concerns the U.S. has regarding the U.S. government's ability to co-opt, influence and pressure the company into taking certain actions in regards to disclosing certain users' data and removing certain content (i.e. the conflict in the Middle East). If anything, the bill might undermine the ability of TikTok users to freely engage in speaking and accessing a diverse set of ideas from a variety of Global South and Global North perspectives.

ZW: Outside of an outright platform ban, are there more effective guardrails that can be put in place to keep social media user's data safe and secure? What are they?

EB: It is striking, to say the least, that so many more meritorious reform proposals pertaining to equitable digital privacy, content moderation, and antitrust policy – ones which had a real chance to address tech platforms' power – never made it through the House. A notable example is the American Innovation and Choice Online Act (AICOA). AICOA makes it illegal for a company like Google to favor its own flight aggregator, maps or advertising service over the services of competitors. So, for example, it imposes obligations on Google to ensure Android users can use different map apps, and to ensure that Search doesn't favor Google ads or Google's own flight aggregator over, say, SkyScanner or Tripadvisor.

Meaningful Federal privacy legislation mirroring the European GDPR or meaningful reform of section 230 of the Communications Decency Act would also be welcome.

Federal privacy legislation would protect Americans against interference from both U.S. and foreign surveillance activities. The argument that surveillance is most problematic and pernicious if it is performed by a foreign entity has been contradicted by pages and pages of academic and nonacademic literature on U.S. government surveillance and surveillance capitalism.

Reforming CDA 230 is particularly timely at a moment when Democrats and Republicans alike are arguing over the future of freedom of expression and on the role of platforms in ensuring an open and inclusive digital public sphere. CDA 230 currently gives platform companies immunity from lawsuits relating to content, and also gives them free reign to moderate and curate content on their platforms. This has proven to be problematic because it makes holding tech platforms accountable for content violations, algorithmic harms and problematic intermediation a lot more difficult than it could otherwise be. Reform, therefore, seems welcome here. The problem is that there is a lot of disagreement on the form such reform should take.

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Professor Bietti was one of six tech and regulatory experts to share their initial reactions to the TikTok ban legislation for the Law and Political Economy blog. You can read it here . And regardless of how PAFACAA ultimately plays out in both Congress and the courts, it is paramount to 1.) Protect your TikTok content and data . 2.) Give your audience every opportunity to follow you on all platforms where you actively disseminate content. 3.) Futureproof your short-form vertical video production process and overall investment in the platform. My colleague Joanie Tobin's list of recommendations in a previous installment of her GBH Digital Video Innovation newsletter is a great starting point. On to the headlines…

Social Media Headlines

• "Stop a TikTok shutdown." That was the in-app message that greeted users last month after the House Energy and Commerce Committee unanimously approved legislation calling for TikTok to cut ties with its Chinese parent company or face a ban in the U.S. Not surprisingly, Congressional phone lines were flooded. (New York Times )
• Lawmakers in the House of Representatives were unmoved by the pleas of content creators. By a 352-65 vote, they said “YAY” to the bill which now makes its way to the Senate. Ti(c)k-To(c)k, indeed. (CNN )
• Congressional leaders supporting the bill are insisting it's not a ban. (Slate )

• Portal note: Even if the bill is passed by the Senate and is signed into law, it will very likely be taken to court immediately and be put under the microscope of constitutional scrutiny. See: First Amendment. (NPR ) And see Q&A above!?
• Elon Musk's lawsuit against the Center for Countering Digital Hate non-profit group did have its day in court. It didn't last long. (AP )?
• According to X's previous policies, sharing an individual's name, birthdate, or place of employment was not a violation of privacy because those pieces of information can be found elsewhere. However, after the exposure of an alleged neo-Nazi cartoonist, followers complained, accounts were suspended, and policies were (not so) quietly updated. (The Advocate )?
• The LGBTQ advocacy group GLAAD issued a report last week documenting dozens of anti-trans posts on Facebook, Instagram and Threads, some made by high-profile political influencers and media outlets, and calling on Meta to better enforce its policies against such posts. (Washington Post )
• While the polls were open, the power went out at Facebook, Instagram and WhatsApp on Super Tuesday. Not ideal, Meta. ?? (The Guardian )
• Synthetic drugs for sale on Facebook? Federal prosecutors are looking into it. (WSJ )
• LinkedIn to news publishers: "Hi. Looking for a friend? We’re still here." ?? (Axios )
• Rest easy, CrowdTangle. ?? (Platformer )
• Ring that ??! $RDDT shares are now available for purchase on the New York Stock Exchange. (Yahoo! Finance )??

March's Biggest Platform Updates

• Meta's February announcement of removing political content from its recommendation surfaces (Explore, Reels, Feed Recommendations, and Suggested Users) across both Instagram and Threads has officially gone into effect. Meta defines political content as "posts about laws, elections, or social topics." If you're following someone's account, you’ll continue to see their content like normal. The new feature is now automatically turned on by default. (Fast Company )

• Portal note: If you want the political discourse to fly unfiltered, you'll want to go to the hamburger menu in the upper right of your IG profile > scroll down to "Content Preferences" > select "Political Content" > select "Don't limit political content from people you don't follow"

• Now when you tap on a hashtag used in an Instagram Feed post, you'll see the search results for that #. You will still be able to follow/unfollow or report specific hashtags, too. (Adam Mosseri )
• Call it a comeback for long-form video? Instagram is testing out three-minute uploads on Reels. (Social Media Today )
• Threads has rolled out Trending Topics to users in the U.S. They will appear in both the search page and in the For You Feed of the app. (Mashable )
• Meta has announced that that its beta experience of sharing Threads accounts to the fediverse is now open to users ages 18+ with public profiles in the U.S., Canada and Japan. Once the integration is turned on, people on other servers (including Mastodon) can find your Threads profile and like, repost and share your posts with multiple audiences. (TechCrunch )

• Portal note: To opt into the integration, go to account settings and toggle on fediverse sharing. This gives you the chance to connect with audiences who may not be on Threads but use alternative social networking apps.?

• New Threads test: Like it → Swipe ??. Not interested → Swipe ??. (The Verge )
• TikTok's new Creator Rewards monetization program will determine payouts to content creators based on four core metrics: search value, originality, play duration, and audience engagement. TikTok's version of SEO, “search value,” is whether a creator is posting content that is about topics users are searching for in the app. (The Verge )
• Previously only available to users with X’s highest subscription level, Premium+, xAI's chatbot Grok has been made available to all premium subscribers on X, according to Elon Musk. (The Hill )
• To address inconsistencies and improve the overall accessibility of the platform, YouTube is testing out a feature that lets viewers correct auto-generated captions for a select group of English-language channels on desktop. (Android Authority )
• As part of a larger rollout of new AI policies, YouTube is introducing a new Creator Studio tool that requires content creators to disclose when content that viewers could mistake for a real person, place or event was created with altered or synthetic media, including generative AI. (TechCrunch )
• "Don't delete videos." — YouTube (Search Engine Land )
• LinkedIn has rolled out Pages Messaging to all businesses. (Social Media Today )?
• Google has started to automatically show social media posts on Business Profiles. (Social Media Today )

Best Practices

• LISTEN TO YOUR AUDIENCE. You might just find your next "Resident Librarian." The social media brain trusts at PBS and PBS KIDS not only noticed @-mention after @-mention on TikToks and Reels put out by California-based book joy influencer Mychal Threets, but they acted on it. And they were able to easily sell higher-ups on the collaborative partnership because Mychal's personal brand of literacy, mental health, and community very closely align with the mission of public media. (ICYMI by Lia Haberman )?
• SOMETHING NEW. SOMETHING FUNNY. SOMETHING INSPIRING. According to Hootsuite's 2024 Social Media Consumer Report, audiences enjoy content when it tells or teaches them something new (56%), makes them laugh (55%), inspires them (47%), makes them feel something (36%), visually engages them (36%), and surprises them (30%). (Hootsuite )??
• SOURCE-WRANGLING? TRY REDDIT. While the X environment can often be an echo chamber of voices from a journalist's immediate network of friends and peers, Reddit has hundreds of thousands of "broad stroke cultural niche" forums that can be goldmines for hyper-specific trend pieces. But, as always, there's a science to vetting. Freelance science journalist Maddie Bender: "As someone with training in biology and statistics and rigorous science, it always made me uncomfortable to see how close people were skewing to their own circles when they were doing callouts [on Twitter]." (Study Hall )?

• COPYWRITING STILL MATTERS. Sure you look good, but who are you as a brand or organization? FONZIE copywriting duo Arin Delaney and Madison Palasini: “Visuals allude to it, copy speaks to it.” (Link in Bio ) AD + MP's three rules:?1.) Don't talk down, don't punch down. 2.) Be clear about what you want from people. Bring them into a world. 3.) Give them a reason to stay.
• SET SCREEN TIME BOUNDARIES. Social media management can be overwhelmingly stressful and exhausting. A friendly reminder that mental health is health and needs to be prioritized over the never-ending pursuit of that next viral moment. Disconnect! (C4 Energy Director of Social Sam Wells )?

Research & Reports

• We Are Social and Meltwater's Digital 2024 report shows that active social media users globally passed the five billion mark, equivalent to 62.3% of the world's population. The typical social media user now spends 2 hours and 23 minutes per day on their social platforms of choice, and uses 6.7 platforms each month. (MarketingTech )

• FACTS: Gen Z wants to learn. In an eMarketer survey of 1,000+ 15-26-year-olds who use social search, more than 61% of respondents searched for tutorials/”how-to” content. This was followed in popularity by searches for celebrities/creators (49.2%), recipes (46.7%), recommendations (45.3%), and trends (43.8%). (eMarketer )??
• MORE FACTS: It's not just Gen Z. Americans spend 5+ hours per week learning on social media. Preply conducted a survey of 998 of them to learn about the things that Americans are learning about online. (Preply ) TL;DR:

- Reddit is the top platform preferred by Americans for learning, followed by TikTok and Facebook.?

- The most useful topics Americans learn about on social media: health and wellness (80%), cooking and baking (78%), technology (72%), finance (64%), cultures (63%).

- 97% of the survey respondents who learn about culture on social media say it exposes them to broader perspectives. 96% agree that learning about cultures on social media helps break stereotypes and misconceptions.

• New research from Deloitte shows members of Gen Z prefer to watch social video and livestreams (47%) about twice as much as TV shows (24%) and four times as much as movies (11%). And when they do turn on streaming services, Gen Z is more likely than not to watch something based on social-media creators' recommendations, not the streamer's algorithm. (Business Insider )

• In 2023, YouTube uploads by Media & Entertainment channels only increased by 5%, namely because their presence on this platform was already very consistent. However, this long-term effort paid dividends because with just 5% more uploads, views organically grew +118% in the same time period from 59B in January to 124B globally in December. (Tubular )?
• A new Rival IQ study based on 5+ million posts, and 10+ billion likes, comments, and favorites across Facebook, Instagram, TikTok, and X, found that the median engagement rate for brands dipped on all platforms with the exception of Facebook. (Social Media Today )?

Read, Watch, Listen

• ?? North Carolina Democratic Rep. Jeff Jackson has been more successful than any of his Congressional colleagues in leveraging the megaphone of TikTok to connect directly with his constituents. However, he voted YES on the bill that could ban the platform. His 2.3 million followers were not pleased. (Passionfruit )?
• ?? With Meta now actively restricting the reach of political content, expect Facebook and Instagram to become more like supermarket tabloids, as opposed to political polarization systems. (Social Media Today )
• ?? Elon Musk's X needs creators, but they don't need X. Influencer-marketing firm Aspire surveyed over 450 creators in October and found that just 5% planned to use X as their primary platform in 2024. Two major reasons: unpredictability with the platforms’ content moderation and its ad-revenue-sharing payout program. (WSJ )
• ?? Snapchat isn't social media… but there are still plenty of strategic + creative reasons to advertise on it! (Future Social )
• ?? Looking for Gen Z shoppers? They’re on Facebook. (The Hustle )
• ?? ?? Social media headlines I thought I’d never see in 2024: There’s been a 13x spike in POKES on Facebook in the last month. (Quartz )
• ?? Underrated skill in social media management: Knowing which trends/memes you DON'T need to take to part in. (Slate's Erik Stark )
• ?? "Some moments are just too big for one person. Fortunately, Snoo isn't a person." An IPO "day in the life" of Reddit's fearless leader. (Reddit )
• ?? In the early 2010s, the front-facing camera was integrated into smartphones, most people gained access to high-speed internet and Instagram became widely available for public use. It's also around the time that teen mental health started tanking, according to social psychologist Jonathan Haidt. What's the solution to the uptick in depression, anxiety, and self-harm in young people? Among other things, Haidt suggests no social media 'til the age of 16. (The Atlantic )?
• ?? Why New York Times tech columnist Kevin Roose and Platformer co-founder Casey Newton are actually coming around to the prospect of a TikTok-less future. (Hard Fork )?

"From a privacy perspective, the data of American individuals is collected, used and abused by a multitude of actors every day all of the time. Bad actors from any number of jurisdictions can tap into the open internet, they can access Western platforms by using VPNs, anonymous accounts and various other techniques. They can infiltrate people's laptops, spy on users and intrude in countless ways. There is no reason why Americans will or should feel safer in regards to the integrity of their data and of their digital experiences after a TikTok divestment or ban. TikTok is a very tiny tip of a much larger surveillance capitalist iceberg."

— Northeastern University Assistant Professor of Law and Computer Science Elettra Bietti?