Legal Docket: TikTok on trial

MARY REICHARD, HOST: It’s The World and Everything in It for this 13th day of January. We’re so glad you’ve joined us today. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher.

Does anyone believe the Chinese Communist Party doesn’t have the ability to collect personal data from American young people by way of TikTok?

The current U-S ambassador to China believes the CCP very much does. The company that owns TikTok is Chinese, but is not specifically a state-owned enterprise. Yet, like any Chinese company, it is required to have an in-house Communist Party committee composed of employees who are party members. Ambassador Nick Burns.

BURNS: We make the assumption – I certainly do as ambassador here – that the Chinese government has ultimate complete authority and access to convince a state enterprise here in China or a private company to do what they wish them to do. This is an authoritarian government. In an authoritarian environment, so that is an issue.

REICHARD: Eight content creators on the platform sued the U.S. government to try to stop it from banning TikTok. They say their freedom to enjoy TikTok and leverage it to promote their businesses is as American as apple pie. Content creator Paul Tran.

TRAN: It represents the dreams of countless Americans and entrepreneurs who deserve the right to choose how they reach their customers and share our stories—real American lives. There must be a solution that protects both our national interests and our constitutional rights.

So last week, all the parties to the dispute came to the right place: the U.S. Supreme Court.

It’s time now for Legal Docket.

On Friday, oral argument went on for two and a half hours.

At issue is a new federal law that is a mouthful to say: the Protecting Americans from Foreign Controlled Applications Act. It was passed last March, with a bipartisan majority, and signed into law in April. Frank Pallone is a House Democrat from New Jersey.

PALLONE: The CCP has the ability with TikTok to compromise device security, maliciously access Americans’ data, promote pro-communist propaganda, and undermine our nation’s interests. This is extremely troubling. Beijing, China, should not have the control over Americans that TikTok gives them.

TikTok and the CCP really are the targets, but in addition it singles out North Korea, Russia, and Iran as foreign adversaries of the US and bars using apps those countries control. That includes any app operated by TikTok or its parent company ByteDance.

TikTok connects more than a billion users worldwide 170 million of them in the U.S.—nearly half the population. It’s more than just another app. Some call it a cultural phenomenon where social movements like MeToo and BlackLivesMatter found traction.

EICHER: At the same time, U.S. lawmakers say they’ve been flooded with calls from constituents, saying they’re worried about losing access if TikTok is shut down or forced to sell.

But from the perspective of Congress, TikTok could be a 21st Century Trojan Horse—an app that collects Americans’ data and secretly twists public opinion.

Another surprising twist: President-elect Donald Trump filed an amicus brief that urges the Court to block the law. And that would allow him to personally negotiate terms with TikTok and China once in office.

REICHARD: But the current U.S. government says TikTok is so under the thumb of the Chinese Communist Party that TikTok really has no freedom. Listen to Solicitor General Elizabeth Prelogar defend the ban:

PRELOGAR: The Chinese government's control of TikTok poses a grave threat to national security. No one disputes that the PRC seeks to undermine U.S. interests by amassing vast quantities of sensitive data about Americans and by engaging in covert influence operations….Those realities mean that the Chinese government could weaponize TikTok at any time to harm the United States. TikTok collects unprecedented amounts of personal data….That data would be incredibly valuable to the PRC. For years, the Chinese government has sought to build detailed profiles about Americans, where we live and work, who our friends and coworkers are, what our interests are, and what our vices are. TikTok's immense data set would give the PRC a powerful tool for harassment, recruitment, and espionage…The Act addresses the threat of foreign adversary control with laser-like focus. It requires only divestiture of TikTok to prevent Chinese government control, and that divestiture remedy follows a long tradition of barring foreign control of U.S. communications channels and other critical infrastructure.

EICHER: Prelogar making the national-security case: not targeting Americans’ speech, not targeting cat videos, but rather cutting off a pipeline of sensitive user data that ByteDance then funnels to the Chinese government.

REICHARD: TikTok, however, insists the ban is overkill. TikTok’s lawyers say the Act unconstitutionally restricts free speech.

Jeffrey Fisher argued for TikTok creators—because it’s not just the company, but millions of American users whose speech is at stake.

FISHER: Wholly apart from the companies’ legal interests here, the Act directly restricts the First Amendment rights… of American creators to participate and speak in what the Court, a little less than a decade ago, called the modern public square… And the Act fails any level of scrutiny under this Court’s case law. American creators have long and always enjoyed the right to speak with foreign speakers or publishers. … Restricting speech… because it might sow doubt about our leaders or undermine democracy are the kind of things our enemies do, it is not what we do in this country.

Noel Francisco is TikTok’s lawyer. He argues the law tries to ban speech under a false veneer of national security.

FRANCISCO: Under the Act, one of America’s most popular speech platforms will shut down in nine days… The Act is content-based from beginning to end… it singles out one speaker for uniquely harsh treatment, and it does so because the government fears that China could in the future indirectly pressure TikTok to disseminate foreign misinformation and propaganda.

It is also grossly underinclusive and ignores the most obvious less-restrictive alternative: simply banning TikTok Incorporated from sharing sensitive user data with anyone. We think this Act should not stand.

EICHER: And there you have the core conflict: Is this truly about real-time foreign adversary control? Or is it really about punishing and chilling the message of a certain speaker, however much an enemy it is or may become?

Justice Clarence Thomas pressed TikTok’s lawyer in this exchange:

THOMAS: Exactly what is TikTok’s speech here?

FRANCISCO: …TikTok uses an algorithm that in its view uses the best mix of content… The Act says TikTok cannot do that unless ByteDance executes a qualified divestiture. That’s a direct burden on TikTok’s speech...

Chief Justice John Roberts followed up, pointing out that ByteDance’s ties to Chinese intelligence are at the heart of the congressional findings.

ROBERTS: You began by saying this is a U.S. company operating in the United States. But the ultimate company that controls it, ByteDance, was found by Congress, let’s quote this, to be subject to Chinese laws that require it to assist or cooperate with the Chinese government’s intelligence work, close quotes, and to ensure that the Chinese government has the power to access private data that the company holds. So are we supposed to ignore the fact that the ultimate parent is in fact subject to doing intelligence work for the Chinese government?

FRANCISCO: …We don’t ignore it, but it doesn’t change the First Amendment analysis for a couple of reasons.

REICHARD: But the government paints ByteDance as an extension of the CCP, with a non-stop pipeline of data flowing back to China.

Justice Neil Gorsuch pressed Prelogar, the solicitor general. He wonders why a disclaimer wouldn’t take care of the problem.

GORSUCH: General, isn’t this paternalistic point of view? I mean, don't we normally assume that the best remedy for problematic speech is counter-speech? And, you know, TikTok says it could even live with a --a disclaimer on its website saying this can be covertly manipulated by China in case anybody were left in doubt after today about that possibility. So you're saying that won't work because?

PRELOGAR: That won't work because it is such a generic generalized disclosure that it wouldn't put anyone reasonably on notice about when it's actually happening. And the example I've -

GORSUCH: That's your best -

PRELOGAR: --been thinking about is -

GORSUCH: --that's your best argument, is that the average American won't be able to figure out that the cat feed he's getting on TikTok could be manipulated even though there's a disclosure saying it could be manipulated?

PRELOGAR: But imagine if you walked into a store and it had a sign that said one of one million products in this store causes cancer, that is not going to put you on notice about what product is actually jeopardizing your health. And I think that's roughly equivalent to the type of disclosure they're contemplating here.

REICHARD: How the court analyzes this case may be the most important question. Does it review the law under a rational-basis analysis, giving the government the benefit of the doubt? Or does the court give it strict scrutiny, the highest level, reserved for when constitutional rights are at stake.

If it uses “strict scrutiny”, the government would have to clear high hurdles: the law must have a compelling reason and achieve its purpose in the least-restrictive way.

EICHER: Justice Sonia Sotomayor asked whether the government’s interest was truly “compelling.” Francisco replied that even if it were, the government doesn’t just get to single out a speaker.

Justice Brett Kavanaugh made a reference to the appeals court that sided with the government. Here’s Kavanaugh squaring off with TikTok lawyer Francisco:

KAVANAUGH: Chief Judge Srinivasan emphasized that there is a long tradition preventing foreign ownership or control of media in the United States going back radio, TV. I would think no matter the level of scrutiny that history has to be important and I want to get your response to it.

FRANCISCO: I don’t actually think it’s important in this context…That’s about bandwidth scarcity. The web has no such limitation. So you can’t just take that rule and apply it here.

…going on to say that radio and TV over the air uses bandwidth that is finite, whereas the web has no such limit. So those rules don’t apply.

The hearing was sprinkled with references to national security, free speech, and speculation about what the incoming Trump administration might do differently.

The president-elect says he wants the deal-making power to handle TikTok on his own terms.

TRUMP: I’ve got a warm spot in my heart for TikTok because I won youth by 34 points, and folks say TikTok had something to do with that.

REICHARD: TikTok is not only an American concern. Multiple countries have restricted or banned it. In Albania, authorities blamed the platform for its part in inspiring someone to stab a 14-year-old boy last month. France, Germany, and Belgium also tightened rules. Australia took a different tack and banned all social media for kids under 16.

EICHER: Back in the Supreme Court arguments, a final question is what the Court might do if it thinks the law is just too broad. Justice Samuel Alito suggested an “administrative stay”—basically a pause on enforcement—to give the new president or Congress more time.

Groups like the American Civil Liberties Union and the Cato Institute side with TikTok, warning of censorship. Former intelligence officials, on the other hand, side with the government, saying TikTok could “go dark” at a critical moment and weaponize disinformation.

REICHARD: I counted four justices who sounded firmly on the side of the government, in favor of banning TikTok, but that’s not enough to make a majority. Maybe they’ll persuade another justice to join them.

Or, perhaps they’ll take the idea suggested by Justices Alito and Kavanaugh: issue a stay and give the incoming president a chance to wheel and deal.

I expect a fast decision on this one, given the January 19th deadline the law sets out if TikTok hasn’t divested from its CCP parent.

And that’s this week’s Legal Docket!

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