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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts TikTok at War
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Friday, April 08, 2022
TikTok at War
Guest Blogger
Nick Frisch
War in
Ukraine has multinational social platforms scrambling to rewrite their
playbooks for content moderation. Facebook has loosened hate-speech bans on Ukrainian
nationalist militias who flirted with fascism and anti-semitism; new policies allow Facebook users to incite
violence against Russian occupiers. YouTube has blocked official channels of Russian state
media. Google has faced pressure to tone down
Russian propaganda running in paid advertising. Twitter is crimping the reach of official
Russian government accounts, and scrubbing images of prisoners of war that
contravene the Geneva Conventions.
Then
there is TikTok, the colossally popular short video
platform, whose addictive algorithm serves up an endless stream of shimmying and lip-syncing
Gen-Zers. TikTok’s parent company, Beijing-based ByteDance, developed its
AI-driven content delivery through news aggregation app Toutiao before pivoting to video. TikTok is
China’s first global media platform to compete with Silicon Valley’s social behemoths; it was the most-downloaded app of
2021. Before the war in Ukraine, TikTok struggled through public relations
headaches. News reports called out TikTok’s sanitizing of content displeasing to Beijing,
including accounts of repression in Xinjiang and Hong Kong. The algorithm also has a nasty
tendency to drive impressionable young users towards looping video sequences
about self-harm. Then there is TikTok’s aggressive
and intrusive data collection.
A Trump
Administration effort to force the company’s sale was
framed as a national security necessity. Trump, attempting to mandate sharing
of TikTok’s secret-sauce algorithm with an American corporate partner, sparked
a war of words with Beijing. People’s Daily, the Communist Party’s
official mouthpiece, threw its weight behind ByteDance, a nominally private
company, describing its proprietary algorithm as a “core interest,” the
same label applied to sovereignty issues like Tibet and Taiwan.
Trump’s proposed shotgun merger between TikTok and an American firm was iced by the Biden Administration pending
further review. Meanwhile, the company has repositioned itself as a global
firm, with content moderation decisions taken in Los Angeles and Dublin, and TikTok’s international
headquarters located in Singapore. International outrage over
censoring certain content, such as a teen make-up tutorial-turned-plea for
Uighur rights, has forced the company to loosen the censorship defaults
originally imported from Douyin, TikTok’s domestic counterpart within China,
whose videos are heavily censored and surveilled.
The war
in Ukraine has tested TikTok’s content moderation, posing challenges that, due
to peculiarities of
TikTok’s platform, can be thornier than those handled by Facebook or
Google. While the latter two companies employ extensive text-based and static
image screening of misinformation as a supplement to scanning video and audio, TikTok’s sole focus on video means that
clips can be delivered stripped of text or metadata, forcing moderators to use
computationally intensive scanning of audio and video. Users are flooding the
platform with misleadingly edited or dubbed video, privileging sensationalist
material to gain attention (and, sometimes, cryptocurrency
donations). An analysis by NewsGuard found that TikTok was driving users
towards erroneous information within a few minutes of scrolling, including both
pro-Russian and pro-Ukrainian memes. Despite these flaws, disengagement from
TikTok isn’t a realistic option: the app is too popular with an otherwise hard-to-reach
youth demographic, valued both by advertisers and by legacy media organizations
eager to reach new users. On TikTok, misinformation videos about Ukraine
circulate alongside videos from reputable and verified legacy news outlets,
such as the Washington Post.
TikTok
is not alone in scrambling, and sometimes failing, to deploy an effective
content policy during a sudden and catastrophic war; Facebook, Google, and
YouTube have struggled too. As the initial shock of the invasion dissipates and
the war grinds on, social media giants will refine and consolidate their
wartime moderation policies. TikTok, whose Beijing-based CEO can’t be easily
subpoenaed by Congress, will face questions its peer platforms do not. Western
tech firms, headquartered and operating in liberal democracies sympathetic to
Ukraine, have picked sides in the conflict: besides Facebook and Google, Apple
and Dell have stopped sales in
Russia and Belarus. Their Western corporate counterparts in aviation, retail,
energy, and other sectors have either pulled out or are eyeing the exits.
TikTok, to avoid running afoul of Moscow’s new information law, has disabled some features within Russia. The company is holding
daily meetings in Dublin to manage the competing demands of covering the Ukraine war in a
way acceptable to governments and users in Western countries whose populations
are essential to TikTok’s global market share.
Still,
whatever its efforts, as a Chinese-owned company seeking to maximize global
market share and profits, TikTok may face uncomfortable questions in the months
and years ahead. Beijing has clearly signaled its disapproval of the West’s
attempts to economically blockade Russia. TikTok’s corporate parent, ByteDance,
ultimately answers to the whims of the Chinese
Communist Party. Episodes from its recent history suggest a complex path
forward. In 2017, ByteDance’s original news aggregator app was initially advertised as a
human-free algorithm. Authorities in Beijing were horrified to discover that
the AI’s tendency towards toxic looping of “unhealthy” content, including
risqué sexual and political material. Bytedance’s then-CEO was forced to make a
public apology, and
shutter an irreverent sister app. The company assigned human moderators to tame
the AI and ensure no repetition of the politically undesirable content being
pushed to millions. For the past several years, ByteDance has been a loyal
screw in the Party machine, its landing pages regularly reserving space for the
Party’s most important bulletins. ByteDance’s news content reflects the
official line on sensitive issues, even as the algorithm feeds users an
addictive blend of their favorite pop stars, adventurous recipes, or home
repair tips. The Chinese domestic version of TikTok, a nearly identical
platform called Douyin, applies the same curation to videos within China’s
Great Firewall. On these platforms, Washington and NATO are cast as villains
who forced Moscow’s hand. In the last few days, Bytedance’s aggregated news
about the massacre of civilians near Kyiv emphasizes Beijing’s official
pro-Moscow slant, seeding doubts about whether the massacre was fake, staged,
or committed by Ukrainian forces or Western agents.
ByteDance
is hardly alone in propagating this view. In fact, it is only the latest in a
long line of legacy media that have learned to sing Beijing’s tune, both at
home and abroad. China’s heavily censored domestic media takes its cues from
official spokesmen, state TV, and official newspapers like People’s Daily.
Beijing is emphasizing American perfidy, denouncing sanctions, and sympathizing
with Russia’s grievances, amid blandly worded appeals for de-escalation and
dialogue. The Ukraine coverage circulating in China’s domestic media ecosystem
is echoed abroad in Beijing’s overseas platforms, in its international
television channels and newspapers. While official Russian channels have been
purged from Western tech platforms, Chinese channels, duly marked as state
media, remain. (This occurs on a low-tech level, too: paper copies of China
Daily, Beijing’s major English publication abroad, are still sold in the
streets of Manhattan, alongside local papers like New
York Times.) These vectors for China’s official line may not make much of a
dent in a robust media market in America or Western Europe. Further afield,
however, China’s decision to support and amplify the Kremlin’s fevered narratives,
such as claims about Ukrainian biolabs, may
have deeper consequences. In Africa and Latin America, China’s efforts to train local journalists have run in tandem with efforts to provide news-wire bulletins from
Xinhua state media, in local languages, to pad out local papers. Such efforts
to shape legacy media outlets, far away from Washington or Brussels, have been
underway for years.
But TikTok, with 100 million users in Latin America and a growing user
base in Africa, changes the game. Privileging
growth while trying to avoid controversy will only take ByteDance so far.
Beijing has recently cracked down on tech giants, displacing ByteDance’s
previous CEO and taking a company board seat. The Communist Party may soon
awake to previously unknown opportunities for Beijing’s priorities to subtly
shape discourse far away from media centers in London or New York. TikTok’s
choices to amplify or downplay certain types of content around the world will
be influenced by human moderators whose ultimate corporate bosses sit in
Beijing. Even if American and European data and content moderation compliance
laws are enforced on TikTok subsidiaries in those jurisdictions, that leaves
the rest of the world’s TikTok users using a platform without local visibility
into how content is curated. The consequences may trickle into geopolitics.
When Facebook was used to whip up Islamophibic hysteria against Myanmar’s
minorities, the platform faced accountability through the Western media and
political system. If TikTok played a role in inciting a genocide in Africa, would we ever
know how it happened? How would TikTok behave—and to whom will its CEO
ultimately listen? Nick Frisch is a Resident Fellow of Yale's Information Society Project. You can reach him by e-mail at nick.frisch@yale.edu.
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Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |