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center for democracy & technology
Lawmakers, Civil Society Groups Urge Supreme Court to Block TikTok Ban
"Banning this social media platform would trample on the constitutional rights of over 170 million Americans."
Dec 27, 2024
Update (December 28):
On Friday evening, President-elect Donald Trump filed a brief with the Supreme Court that took no position on whether a ban on TikTok would violate First Amendment rights. Instead, he wrote that he has "consummate deal-making expertise," and as president would be able to "negotiate a resolution to save the platform while addressing the national security concerns expressed by the government."
Trump touted his understanding of social media, noting that he has 14.7 million followers on TikTok. He also said the timing of the impending ban—one day before he takes office–interferes with his "ability to manage the United States’ foreign policy and to pursue a resolution" that will preserve the app in the United States and protect national security.
Earlier:
Ahead of the U.S. Supreme Court's scheduled hearing on social media company TikTok's appeal regarding a ban on the popular platform, three bipartisan lawmakers were among the First Amendment advocates who filed amicus briefs in support of the app on Friday.
Sens. Ed Markey (D-Mass.) and Rand Paul (R-Ky.) were joined by Rep. Ro Khanna (D-Calif.) in asking the court to grant TikTok an emergency injunction to block the Protecting Americans from Foreign Adversary Controlled Applications Act from banning the app on January 19 unless the platform's Chinese parent company sells its stake by then.
The law and its ban on TikTok would "deprive millions of Americans of their First Amendment rights," said the lawmakers.
"The TikTok ban does not survive First Amendment scrutiny," Markey, Paul, and Khanna added. "Its principal justification—preventing covert content manipulation by the Chinese government—reflects a desire to control the content on the TikTok platform and in any event could be achieved through a less restrictive alternative."
The law was signed by President Joe Biden in April over the objections of First Amendment advocates, and a federal appeals court upheld the ban earlier this month. The Supreme Court then agreed to hear TikTok's challenge.
The ACLU, the Center for Democracy & Technology (CDT), and the Freedom of the Press Foundation were among several civil liberties groups that also filed a amicus brief on Friday, arguing that the government has not presented sufficient evidence that the app, which is used by 170 million Americans, causes "ongoing or imminent harm."
Patrick Toomey, deputy director of the ACLU's National Security Project, said the government's attempt to ban Americans from using TikTok, which some creators use to share commentary on geopolitical events as well as weighing in on pop culture and creating humorous videos, is "extraordinary and unprecedented."
"This social media platform has allowed people around the world to tell their own stories in key moments of social upheaval, war, and natural disaster while reaching immense global audiences," Toomey said.
TikTok, he said, is "a unique forum for expression online—and the connections and community that so many have built there cannot be easily replaced. TikTok creators can't simply transfer their audiences and followers to another app, and TikTok users can't simply reassemble the many voices they've discovered on the platform."
At CDT, Free Expression Project director Kate Ruane said the groups' amicus brief "makes clear that national security interests do not diminish protections afforded by the First Amendment and that courts must impose the same rigorous standards to laws that restrict speech."
"It further argues that the D.C. Circuit misapplied strict scrutiny when it failed to significantly examine the government's vague and nonspecific national security justifications for enacting the statute," said Ruane. "In light of the law's sweeping ban on free expression, the coalition's brief argues that the court should block implementation of the Protecting Americans from Foreign Adversary Controlled Applications Act."
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Rights Groups Cheer Senate Bill to Curb Warrantless Spying on Americans
The SAFE Act "would make critical reforms to stop persistent abuse" and is "meticulously designed to account for operational needs," said one advocate.
Mar 14, 2024
Just weeks away from the expiration of a U.S. government surveillance power with a history of abuse, a bipartisan group of senators unveiled a reauthorization bill welcomed by rights groups who have long demanded reforms.
Congress and U.S. President Joe Biden last year temporarily extended Section 702 of the Foreign Intelligence Surveillance Act (FISA), which permits warrantless surveillance targeting noncitizens located outside the United States, to allow for ongoing discussions of possible changes opposed by the intelligence community and its allies on Capitol Hill.
"There is little doubt that Section 702 is a valuable national security tool. However, while only foreigners overseas may be targeted, the program sweeps in massive amounts of Americans' communications, which may be searched without a warrant," Senate Majority Whip Dick Durbin (D-Ill.) noted Thursday.
Durbin, who also chairs the Senate Judiciary Committee, and Sen. Mike Lee (R-Utah) are leading the Security and Freedom Enhancement (SAFE) Act with support from 11 other senators who have backed reform efforts in response to rampant abuse, particularly by the Federal Bureau of Investigation (FBI).
"The documented abuses under FISA should provoke outrage from anyone who values the Fourth Amendment rights of American citizens," said Lee. "From warrantless searches targeting journalists, political commentators, and campaign donors to monitoring sitting members of Congress, these actions reveal a blatant disregard for individual liberties."
After noting that "even after implementing compliance measures, the FBI still conducted more than 200,000 warrantless searches of Americans' communications in just one year—more than 500 warrantless searches per day," Durbin framed the SAFE Act as "a sensible, bipartisan path forward on reauthorizing Section 702 with meaningful reforms."
With the April 19 sunset of Section 702 of the Foreign Intelligence Surveillance Act approaching, I'm announcing a bipartisan compromise bill that protects Americans from foreign threats and from warrantless government surveillance. WATCH: https://t.co/3ELLO7O7YN
— Senator Dick Durbin (@SenatorDurbin) March 14, 2024
Specifically, the bill would require agencies to "obtain a FISA Title I order or a warrant before accessing the contents of Americans' communications collected under Section 702—but not before running queries," the sponsors explained. It also includes additional layers of internal supervision for queries involving Americans and would close the data broker loophole, among other provisions.
"Sen. Durbin and Lee have carefully crafted a bipartisan compromise bill," said ACLU senior policy counsel Kia Hamadanchy. "While this legislation does not include every reform civil liberties groups have been pushing for, it does include meaningful changes that will rein in the government's warrantless surveillance of Americans and help ensure that our privacy is protected. The Senate should take up this bill immediately."
Demand Progress policy director Sean Vitka agreed. While also noting that it doesn't have everything rights advocates wanted, he said that "the SAFE Act is a major development in the ongoing fight to rein in warrantless government surveillance of people in the United States."
"We commend Sen. Durbin and Lee for their leadership," Vitka added, stressing that "an overwhelming number of Americans from across the political spectrum want Congress to seize this once-in-a-generation moment and get this done."
Jeramie Scott, senior counsel and director of the Electronic Privacy Information Center's Project on Surveillance Oversight, similarly praised the pair for crafting the bill, which he said "takes a pragmatic, measured approach to reform that draws upon a wide range of proposals" to offer "a clear path forward to reauthorizing Section 702 while ensuring that our rights are protected."
Jake Laperruque, deputy director of the Center for Democracy & Technology's Security and Surveillance Project, also celebrated that the bill "would make critical reforms to stop persistent abuse" and is "meticulously designed to account for operational needs."
"We're just a few weeks away from the expiration of FISA 702—it's time for congressional leadership to stop stalling and allow a vote on these critical reforms," Laperruque declared.
The SAFE Act comes just days after Wiredrevealed that U.S. House Permanent Select Committee on Intelligence Chair Mike Turner (R-Ohio) privately tried using peaceful protests at the home of Senate Majority Leader Chuck Schumer (D-N.Y.) as proof of the need to block long-demanded reforms to Section 702.
Turner notably already faced calls to resign after he announced that his panel had provided members of Congress with "information concerning a serious national security threat," which news outlets reported was that Russia has made progress on a space-based nuclear weapon to target U.S. satellites.
Amid that controversy—which was widely seen as a ploy to force the reauthorization without reforms—House Speaker Mike Johnson (R-La.) abruptly delayed action on Section 702 in February. However, the Republican leader toldPolitico on Thursday that "the current plan is to run FISA as a standalone the week after Easter."
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Landmark Artificial Intelligence Act in EU Slammed as Rights 'Failure'
One expert said the law "is littered with concessions to industry lobbying, exemptions for the most dangerous uses of AI by law enforcement and migration authorities, and prohibitions... full of loopholes."
Mar 13, 2024
As European Union policymakers on Wednesday lauded the approval of the Artificial Intelligence Act, critics warn the legislation represents a giveaway to corporate interests and falls short in key areas.
Daniel Leufer, a senior policy analyst at the Brussels office of advocacy group Access Now, called the bloc's landmark AI legislation "a failure from a human rights perspective and a victory for industry and police."
Following negotiations to finalize the AI Act in December, the world's first sweeping regulations for the rapidly evolving technology were adopted by members of the European Parliament 523-46 with 49 abstentions. After some final formalities, the law is expected to take effect in May or June, with various provisions entering into force over the next few years.
"Even though adopting the world's first rules on the development and deployment of AI technologies is a milestone, it is disappointing that the E.U. and its 27 member states chose to prioritize the interest of industry and law enforcement agencies over protecting people and their human rights," said Mher Hakobyan, Amnesty International's advocacy adviser on artificial intelligence.
The law applies a "risk-based approach" to AI products and services. As The Associated Pressreported Wednesday:
The vast majority of AI systems are expected to be low risk, such as content recommendation systems or spam filters. Companies can choose to follow voluntary requirements and codes of conduct.
High-risk uses of AI, such as in medical devices or critical infrastructure like water or electrical networks, face tougher requirements like using high-quality data and providing clear information to users.
Some AI uses are banned because they're deemed to pose an unacceptable risk, like social scoring systems that govern how people behave, some types of predictive policing, and emotion recognition systems in school and workplaces.
Other banned uses include police scanning faces in public using AI-powered remote "biometric identification" systems, except for serious crimes like kidnapping or terrorism.
While some praised positive commonsense guidelines and protections, Leufer said that "the new AI Act is littered with concessions to industry lobbying, exemptions for the most dangerous uses of AI by law enforcement and migration authorities, and prohibitions so full of loopholes that they don't actually ban some of the most dangerous uses of AI."
Along with also expressing concerns about how the law will impact migrants, refugees, and asylum-seekers, Hakobyan highlighted that "it does not ban the reckless use and export of draconian AI technologies."
Access Now and Amnesty are part of the #ProtectNotSurveil coalition, which released a joint statement warning that the AI Act "sets a dangerous precedent," particularly with its exemptions for law enforcement, migration officials, and national security.
Other members of the coalition include EuroMed Rights, European Digital Rights, and Statewatch, whose executive director, Chris Jones, said in a statement that "the AI Act might be a new law but it fits into a much older story in which E.U. governments and agencies—including Frontex—have violated the rights of migrants and refugees for decades."
Frontex—officially the European Border and Coast Guard Agency—has long faced criticism from human rights groups for failing to protect people entering the bloc, particularly those traveling by sea.
"Implemented along with a swathe of new restrictive asylum and migration laws, the AI Act will lead to the use of digital technologies in new and harmful ways to shore up 'Fortress Europe' and to limit the arrival of vulnerable people seeking safety," Jones warned. "Civil society coalitions across and beyond Europe should work together to mitigate the worst effects of these laws, and continue to towards building societies that prioritize care over surveillance and criminalization."
"It has severe shortcomings from the point of view of fundamental rights and should not be treated as a golden standard for rights-based AI regulation."
Campaigners hope policymakers worldwide now take lessons from this legislative process.
In a Wednesday op-ed, Laura Lazaro Cabrera, counsel and director of Center for Democracy & Technology Europe's Equity and Data Program, argued the law "will become the benchmark for AI regulation globally in what has become a race against the clock as lawmakers grapple with a fast-moving development of a technology with far-reaching impacts on our basic human rights."
After the vote, Lazaro Cabrera stressed that "there's so much at stake in the implementation of the AI Act and so, as the dust settles, we all face the difficult task of unpacking a complex, lengthy, and unprecedented law. Close coordination with experts and civil society will be crucial to ensure that the act's interpretation and application mean that it is effective and consistent with the act's own articulated goals: protecting human rights, democracy, and the rule of law."
European Center for Not-for-Profit Law's Karolina Iwańska responded similarly: "Let's be clear: It has severe shortcomings from the point of view of fundamental rights and should not be treated as a golden standard for rights-based AI regulation. Having said that, we will work on the strongest possible implementation."
Yannis Vardakastanis, president of the European Disability Forum, said in a statement that "the AI Act addresses human rights, but not as comprehensively as we hoped for—we now call on the European Union to close this gap with future initiatives."
Amnesty's Hakobyan emphasized that "countries outside of the E.U. should learn from the bloc's failure to adequately regulate AI technologies and must not succumb to pressures by the technology industry and law enforcement authorities whilst developing regulation. States should instead put in place robust and binding AI legislation which prioritizes people and their rights."
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