• by Wendy Davis , Staff Writer @wendyndavis, October 26, 2023

More than 30 states including Texas have recently banned the use of TikTok on government-owned devices, mainly due to concerns that the popular app could be sending data back to China, where its parent company, ByteDance, is based.

The Texas version of the ban prohibits use of the app on government-owned computers and broadband networks, and from personal devices that connect to state-run networks. In practical terms that prohibition appears broad enough to prevent state employees from using TikTok on smartphones that also send or receive emails from work.

In July a group of academics sued over the measure, arguing that it hindered their ability to conduct research and teach. The plaintiffs, represented by the Knight First Amendment Institute at Columbia University, claim the ban violates the First Amendment by imposing “a profound burden” on speech.

The ban “severely compromises the ability of public university faculty to teach with and about TikTok, as well as to undertake research relating to TikTok,” the Knight Institute wrote in its complaint.

Late Wednesday, Texas Attorney General Ken Paxton filed papers defending the law. He argued the prohibition is a reasonable security measure, given concerns that the Chinese Communist Party could access the app and “exploit users' location data, passwords and other sensitive data.”

“Stolen passwords could be used to access [the university's] network,” Paxton's office writes, adding that sensitive cyber-defense research could be transmitted directly to the Chinese government.

The attorney general adds that an injunction “could be catastrophic,” because it could leave the network vulnerable to the Chinese government, which in turn could “wreak havoc on the state's operations and employees.”

Meanwhile, at least one of the plaintiffs, University of North Texas professor Jacqueline Vickery, who studies how young people use digital and social media, says the law has forced her to suspend research projects and to stop teaching students about some aspects of the app.

Vickery doesn't have a personal computer or laptop. Though she has a cellphone, the ban appears to prohibit her from using that device to access TikTok because she uses that phone for her university email, Zoom account, and other school-run technology services.

“Lessons about TikTok’s search results, algorithmic recommendations, trends and memes, comments and user interactions, user interfaces and affordances, hyperlinks, and sound libraries all require actual, real-time engagement with the platform and the ability to click on links, scroll, and search,” she said. “I have had to abandon this aspect of my teaching all together.”

Cybersecurity expert Bruce Schneier, a lecturer at Harvard Kennedy School of Government, is backing the request for an injunction.

“Intrusive data collection practices, the spread of disinformation, and risks to network and device security are serious concerns, but they are not unique to TikTok,” he said last month in a court filing.

He also said the ban is counterproductive, arguing it hinders research about TikTok's practices regarding privacy, disinformation and security.

“Understanding what sensitive information TikTok collects, how TikTok uses and secures this information, and who TikTok shares this information with is crucial to assessing the impact of those practices on user privacy and security,” he said. “Gaining a complete understanding of these risks requires additional research into TikTok’s data and security practices, research that Texas’s ban hinder.”

U.S. District Court Judge Robert Pitman in Austin is scheduled to hold a hearing in the case on November 15.

Separately, a different judge is still mulling whether Montana's more extreme TikTok ban violates the First Amendment. Earlier this year, that state passed a law that prohibits app stores from offering TikTok to users in Montana, and prohibits people from using TikTok in the state (with some exceptions, including for law enforcement). The measure doesn't penalize users, but provides for sanctions starting at $10,000 per violation against TikTok and mobile app marketplaces.

TikTok and several users are seeking to block that law before next year, when it's scheduled to take effect.

U.S. District Court Judge Donald Molloy in Missoula heard arguments in that case two weeks ago, and is expected to issue a decision before the end of the year.