There have been two major pieces of legislation discussed and enacted in the U.S. Congress recently. Both, in their own way, challenge our Constitution.
Here’s a head to head battle of the two.
In This Corner, TikTok
There has been a lot of debate in the U.S. Congress about TikTok. If you’ve been living under a rock for the last five or so years, TikTok is a wildly popular video hosting service owned by Chinese internet company ByteDance. It hosts videos, which can range in duration from three seconds to 10 minutes. It can be accessed with a smart phone app.
And In This Corner, FISA
The Foreign Intelligence Surveillance Act of 1978 (FISA) is a federal law that establishes procedures for the surveillance and collection of foreign intelligence on domestic soil.
FISA requires federal law enforcement and intelligence agencies to obtain authorization for gathering "foreign intelligence information" between "foreign powers" and "agents of foreign powers" suspected of espionage or terrorism.
Controversy: TikTok
According to Wikipedia, “TikTok has come under scrutiny due to data privacy violations, mental health concerns, misinformation, offensive content, and its role during the Israel–Hamas war. Countries have fined, banned, or attempted to restrict TikTok to protect children or out of national security concerns over possible user data collection by the Chinese government through ByteDance.”
The U.S. government is concerned that the Chinese Communist Party is collecting personal data from smartphones that use TikTok.
According to FBI Director Christopher Wray, “TikTok, for us, represents a national security concern. The reason I say that is TikTok's parent company is beholden to the Chinese government.”
This concern has led to the December 2022 enactment of the No TikTok on Government Devices Act, prohibiting the use of the app on devices owned by the federal government.
At least 32 states have enacted bans on government-issued devices.
Controversy: FISA
Section 702 of FISA “allows the government to collect — on domestic soil and without a warrant — the communications of targeted foreigners abroad, including when those people are interacting with Americans.
“Under that law, the [National Security Agency] can order email services like Google to turn over copies of all messages in the accounts of any foreign user and network operators like AT&T to intercept and furnish copies of any phone calls, texts and internet communications to or from a foreign target.”
There have been many reports of abuses of the use of Section 702, most notably by the FBI in recent years.
In fact, according to the United States Foreign Intelligence Surveillance Court, in 2020 and 2021 “…the government reported in excess of 278,000 non-compliant FBI queries of raw FISA-acquired information…”
The recent change to Section 702 in the 2024 FISA reauthorization act, changes the language of “electronic service providers.” This change, according to Senator Ron Wyden (D-OR), "will force a huge range of companies and individuals to spy for the government."
Basically, the reauthorization changes the definition of electronic communications service provider, which previously covered traditional phone, email and internet companies. The revision can be used to force "any other service provider who has access to equipment that is being or may be used to transmit or store wire or electronic communications" to hand these communications over to the Feds, as well as "custodians" of these so-called service providers.
According to Senator Wyden, "there is a key question here: who should be forced to help their government spy? The legislation coming from the House gives the government unchecked authority to order millions of Americans to spy on behalf of the government.”
This includes "anyone with access to a server, a wire, a cable box, a Wi-Fi router, a phone, or a computer," and "every office building in America [that] has data cables running through it," Wyden added.
Office cleaning staff, building security guards, and others could be forced into serving as "an agent for Big Brother," he continued.
The Bout
It was a brutal match. The government wants to ban TikTok because of a fear of the Chinese government stealing Americans’ data. But First Amendment advocates counter that banning TikTok suppresses our freedom of speech.
We’re seeing the exact opposite with FISA. The government has increased the scope of the mediums of electronics that can be used to intercept communications of U.S. citizens, effectively stealing Americans’ data. But, perhaps most egregiously, the FISA reauthorization exempts members of Congress from being spied on.
So, it’s ok for the U.S. government to spy on its citizens without a warrant as guaranteed by the Fourth Amendment to the U.S. Constitution. But it’s not ok for citizens to watch cat videos?
TikTok vs FISA: Verdict
Do as I say, not as I do.
I’m declaring FISA to be the winner of the worst affront to out liberties. “They” can listen to us without getting a warrant, nor do “they” have to disclose this to us. And, “they” can do this with impunity, just as “they” have done in the recent past.
As far as TikTok goes, frankly, the Chinese government can probably legally purchase all of our personal information without stealing it. Data such as geolocation, Web history and the like are for sale today to marketing firms.
This is nothing new. Google and other apps already use this information to target ads to their users. If you use Gmail and send an email about a trip to Tahiti, you’ve seen Google placing ads for airfare to Tahiti and Tahiti hotels in your Google searches.
So, what do you think?