Social Media | Student Journal of Information Privacy Law

Data Sovereignty in the Age of Digital Nationalism: The Case of TikTok and the Global Fragmentation of the Internet

Aysha Vear

I. Introduction

Social media has significantly changed the ways in which individuals both receive information and exchange it. As these applications and platforms have increasingly become part of the everyday lives of citizens and further incorporated into their daily interactions, the issue of social media regulation has been a clear focal point of legal and political discourse. Today there exists a growing concern about American citizens’ data with respect to Chinese influence and intrusion. Consequently, the House of Representatives presented a bill in 2024 to mitigate these fears. H.R. 7521 would force the foreign ownership of TikTok, a social media platform controlled by Chinese parent company ByteDance, to divest or face a broad federal ban.[1]

TikTok is centered on short videos created and uploaded by users who are able to create, share and interact with networks of content,^[2] and it has quickly become one of the most popular apps in the United States.^[3] It is “a mass marketplace of trends and ideas and has become a popular news source for young people”^[4] with sixty-two percent of eighteen to twenty-nine year olds saying that they use the app^[5] which reached a billion users in 2021.^[6] The app got its start in the U.S. as an app called “Musical.ly” but was acquired by the Chinese company ByteDance in 2018 and rebranded as TikTok.^[7] ByteDance is headquartered in Beijing and it launched “Douyin,” the Chinese TikTok equivalent in 2016 prior to the “Musical.ly” acquisition. It is this affiliation with China and the Chinese app that flagged concern for United States government officials and this case represents a growing trend of national governments asserting greater control over digital platforms and the content which citizens consume.

This highlights a growing trend toward countries treating data governance as a national security issue. Data sovereignty is a concept that refers to “a state’s sovereign power to regulate not only cross-border flow of data through uses of internet filtering technologies and data localization mandates, but also speech activities . . . and access to technologies.”^[8] Governments are introducing laws to prevent foreign control over citizen data, such as China’s Data Security Law and India’s restriction on data localization. Given that these laws have different aims and approaches to governance as well as shifting priorities, they have increased geopolitical competition between the U.S., China, and the EU. While data sovereignty is a necessary framework for global internet governance, its implementation must balance security concerns with the need to prevent a fragmentation of the internet as we know it. More countries are scrambling to control the flow of data in and out of their national borders and, as such, “the rise in data localization policies has been a contributing factor in declining internet freedom.”^[9] This paper will explore the different approaches of the United States, China, and the European Union in controlling cross-border data flows. Next, looking through a specific lens at the TikTok forced divestiture and attacks on other Chinese entities, it will explore the growing trend of data sovereignty and attempt to find the balance in national security and digital openness. Finally, the paper will suggest possible solutions for the growing need for better collaboration in the digital sphere.

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Section 230 and Radicalization Scapegoating

By Hannah G. Babinski, Class of 2024

Standing as one of the few provisions of the Communications Decency Act of 1996 yet to be invalidated by the Court as unconstitutional, 47 U.S.C. § 230 (“Section 230”) has repeatedly been at the center of controversy since its enactment. As the modern world continues to become further dependent on online, electronic communication, such controversy is likely to only grow. Section 230 insulates interactive computer services—think social media websites, chat-boards, and any other website that enables a third-party user of the website to upload a post, text, video, or other medium of expression—from liability stemming from content uploaded to the website by third-party users, even where interactive computer services engage in good-faith content moderation. In this regard, the provision effectively serves to classify the third parties, and not the host website, as the speakers or publishers of content.

Though Section 230 has been instrumental in the development of the internet at large, by preventing needless and substantial litigation and establishing a sense of accountability for individual users in tort generally, the limited language of Section 230 has resulted in several issues of interpretation concerning the line between what actions, specifically content moderation, constitute speech on behalf of the interactive computer service provider and what actions do not. Over the course of the last five years, courts have examined in particular whether algorithms created by and incorporated into the host websites are speech and, thus, unprotected by Section 230.

In Force v. Facebook, Inc., the Court of Appeals for the Second Circuit addressed the question of algorithms as speech in the context a Facebook algorithm that directed radicalized content and other pages openly maintained and associated with the terrorist organization Hamas, a Palestinian radical Islamist organization, to the personalized newsfeeds of several individuals, who then went on to attack five Americans in Israel between 2014 and 2016.[1]

Though the majority opinion ultimately concluded that the algorithm was protected by Section 230 immunity, Chief Judge Katzmann dissented with a well-written and thorough argument against applying Section 230 immunity to such a case. Though I reserve my opinion concerning whether I necessarily agree or disagree with the dissent in Force v. Facebook, Inc., Katzmann verbalizes the key concern with Section 230 as it applies to social media as a whole, stating:

By surfacing ideas that were previously deemed too radical to take seriously, social media mainstreams them, which studies show makes people “much more open” to those concepts. . . . The sites are not entirely to blame, of course—they would not have such success without humans willing to generate and to view extreme content. Providers are also tweaking the algorithms to reduce their pull toward hate speech and other inflammatory material. . . . Yet the dangers of social media, in its current form, are palpable.[2]

This statement goes to the heart of the controversy surrounding not only algorithms, but exposure to harmful or radicalizing content on the internet generally, which is exacerbated by the advent and use of social media platforms; with the expansive and uninhibited nature of the internet ecosystem and social media websites enabling and even facilitating the connection between certain individuals with a proclivity for indoctrination and individuals disseminating radicalized content absent the traditional restrictions of time, language or national borders, it is only natural that greater radicalization has resulted. Does this mean that we, as a society, should hinder communication in order to prevent radicalization?

Proponents of dismantling Section 230 and casting the onus on interactive computer service providers to engage in more rigorous substantive moderation efforts would answer that question in the affirmative. However, rather than waging war on the proverbial middleman and laying blame on communication outlets, we should instead concentrate our efforts on the question, acknowledged by Katzmann, of why humans seem more willing to generate and consume extremist content in the modern age. We, as a society, should take responsibility for the increase in radicalized content and vulnerabilities that are resulting in higher individual susceptibility to radicalization, tackling what inspires the speaker as opposed to the tool of speech.

According to findings of the Central Intelligence Agency (“CIA”) and affirmed by the Federal Bureau of Investigation (“FBI”), certain vulnerabilities are almost always present in any violent extremist, regardless of ideology or affiliation; these vulnerabilities include “feeling alone or lacking meaning and purpose in life, being emotionally upset after a stressful event, disagreeing with government policy, not feeling valued or appreciated by society, believing they have limited chances to succeed, [and] feeling hatred toward certain types of people.”[3] As these vulnerabilities are perpetuated by repeated societal and social failures, the number of susceptible individuals will continue to climb.

What’s more, these predispositions are not novel to the age of social media. Undoubtedly, throughout history, we have seen the proliferation of dangerous cults and ideological organizations that radicalize traditional beliefs, targeting the dejected and the isolated in society. For example, political organizations like the National Socialist German Workers’ Party, more infamously known as the NAZI party; Christianity-based cults and hate organizations like the People’s Temple, Children of God, Branch Davidians, and the Klu Klux Klan; and Buddhist-inspired terrorism groups like Aum Shinrikyo have four things in common: 1) they radicalized impressionable individuals, many of whom experienced some of the vulnerabilities cited above, 2) they brought abuse/harm/death to members, 3) they facilitated and encouraged abuse/harm/death to nonmembers, and 4) they reached popularity and obtained their initial members without the help of algorithmic recommendations and social media exposure.

The point is that social media is not to blame for radicalization. Facebook and YouTube’s code-based algorithms that serve to connect individuals with similar interests on social networking sites or organize content based on individualized past video consumption are not to blame for terrorism. We are.

[1] Force v. Facebook, Inc., 934 F. 3d 53 (2d Cir. 2019).

[2] Id.

[3] Cathy Cassasta, Why Do People Become Extremists?, Healthline (updated Sept. 18, 2017), https://www.healthline.com/health-news/why-do-people-become-extremists (last visited Feb. 26, 2023).