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It’s TikTok day at the Supreme Court
00:19:15
TikTok is set to be banned in the U.S. in just nine days. Today, the company will try to convince the Supreme Court to strike the ban down — or at least put it on ice. And President-elect Donald Trump has requested the Supreme Court punt the ban until after he’s taken office and can try to broker some sort of solution. Still, TikTok has some long odds. On POLITICO Tech, host Steven Overly talks with Alan Rozenshtein, a law professor at the University of Minnesota Law School and former lawyer in the Justice Department, about what to watch for during today’s arguments.
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- [00:01]
A
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B
Hey, welcome back to Politico tech. It's Friday, January 10th. I'm Stephen Overleight. TikTok is finally getting its moment in front of the supreme court. In just nine days, TikTok is set to be banned in the US banned as in you won't be able to download it from app stores like Apple or Google. And today, the company will try to convince the court to strike the ban down or at least put it on hold for now. TikTok has allies in that fight. Most notably, President elect Donald Trump has requested the Supreme Court punt the ban until after he's taken office and can try to broker some sort of solution. Still, Alan Rosenstein thinks TikTok has long odds. Allen is a law professor at the University of Minnesota Law School and a senior editor at Lawfare. And during the Obama administration, Allen was an attorney in the Justice Department's National Security Division. On the show today, Alan tells me what he's watching for during today's arguments and what the Supreme Court might actually do. Here's our conversation. Alan, welcome to Politico Tech.
- [01:48]
A
Thanks for having me.
- [01:50]
B
The Supreme Court is going to hear arguments today as TikTok fights off this forthcoming ban in the US what will you be watching for?
- [01:59]
A
So I'll be curious to see in terms of the argument, if TikTok gets a better reception than it did at the D.C. circuit, which is where TikTok first challenged the law a few months ago and where it got a resounding loss back in December. That loss was 3, 0. It was a cross ideological panel. You had judges appointed by Trump, Obama, and actually all the way back to Ronald Reagan. And they really showed TikTok no love at all. I'm skeptical that TikTok will get a better reception in the Supreme Court, but obviously we'll have to wait and see later this morning what the justices think of TikTok's argument.
- [02:33]
B
Is there any reason to believe that they might have better chances this time around? I mean, could the lawyers go back and restrategize in some sort of meaningful way again?
- [02:41]
A
You never know. And it's hard to predict until you Hear argument. And then until you read the opinion, I'm very skeptical. This is not a argument where I think a ton depends on some particular factual detail or on a different legal theory. I think the. The stakes of this case are pretty well established. It's pretty clear what are the values that are being traded off here. And I just don't think that the Supreme Court is going to make that trade off very differently than the D.C. circuit did.
- [03:06]
B
And practically speaking, the TikTok ban is slated to take effect on January 19th. And when I say that if ByteDance, the owner of TikTok, has not found a new owner by then, it risks being pushed out of app stores. How could the Supreme Court intervene between now and then if it wanted to?
- [03:25]
A
Sure. So the Supreme Court can basically do three things between now and the 19th. One, it could uphold the law, in which case the law goes into effect. It could strike the law down, which is to say reverse the D.C. circuit. I think that's highly unlikely, but that's absolutely something that could happen, in which case the law goes away and things go on as normal. Or the Supreme Court could do what TikTok, and in particular what incoming President Donald Trump asked, which is to pause the law for some indefinite period of time so as to give TikTok and Trump a chance to do something, I guess to structure some sort of deal to convince the Chinese government to let by Dancel to find a new owner, and so so on and so forth. I'm very skeptical that the Supreme Court will do that. The Supreme Court doesn't actually have the legal authority to do that now. It is the Supreme Court. So in some sense, it can do whatever it wants to do. But based on traditional legal principles that all the justices, liberal and conservative, presumably understand and agree to, there is no basis in law for the Supreme Court to pause a duly enacted and otherwise constitutional act of Congress just because. But that is, technically speaking, a third option. And it's notable because it is the option that incoming President Trump asked for. And although I suspect the Supreme Court will not grant Trump that request, they certainly will take it seriously.
- [04:39]
B
That's what I was gonna ask you. You know, when you brought Trump up, obviously that is a big change, I think, since the appeals process is that President Elect Trump filed a brief with the court asking them to essentially put this on hold until after he takes office. You know, this is a legal process, but realistically, this ban has been infused with politics from the very beginning. And here you have an incoming Republican president making a request of a conservative Majority Supreme Court, how likely are they to kind of factor Trump's wishes into their decision? And is there any kind of precedent for that happening?
- [05:14]
A
So the last question is easiest to answer, and the answer is no, there's not really any precedent for something like that to happen in terms of how they'll factor it in. Look, it's, it's, it's hard to know. The justices are human beings at the end of the day, and they understand that they exist in politics and that they have to take that into account. At the same time, I just don't think there are enough votes to give Trump what he wants. The way that I think about it, the Supreme Court has sort of three different wings to it. There's the liberal wing of Kagan, Sotomayor, and Jackson. Then you have the extreme conservative wing that's primarily Alito and Thomas, and Gorsuch sometimes kind of floats in there, and then you have. I don't want to call it the moderate wing per se, because they're very conservative, but they're still kind of in the middle. And that's Chief Justice Roberts, Kavanaugh, Barrett, and then sometimes Gorsuch. Now, what I think is notable is that the three justices who were appointed by Trump, Kavanaugh and Barrett, certainly, and I think mostly Gorsuch, are themselves not particularly extreme. I don't think they think of themselves as, quote, unquote, Trump appointees. They certainly don't feel themselves beholden to Trump in any particular way. They did not rule in his favor with respect to, for example, the 2020 election litigation.
- [06:19]
B
Right.
- [06:20]
A
So I don't think they have any problems ruling against Trump in this situation. I think Alito and Thomas, who, again, actually were not appointed, somewhat ironically, by Trump, I think they are the most. I want to be careful how I say this. I think they are perhaps most sensitive to sort of the political GOP party dynamics at play. Again, I don't think they think of themselves as beholden to Trump either. And so I also don't think that they will entertain Trump's request. And I think also you're right that this has become suffused with politics, but this is still not a conservative, liberal issue. Right. This is actually still pretty bipartisan issue, at least it was in Congress. And there are plenty of conservatives who are China hawks, many of whom are in the Trump administration, who are delighted with a TikTok ban. So this is not a political issue in the way that, let's say, abortion or affirmative action was, in which, in the sense that you could sort of predict where a justice would vote based on the affiliation of the president that nominated them.
- [07:12]
B
Got it. I love listening to like all of the, you know, moving the players around to what camps they might fall into. I mean, in many ways, when I talk about this case, you know, it kind of boils down in some ways to like, First Amendment versus national security kind of debate. And I think whether that's really broad and precedent setting or really, you know, narrowly focused just on certain unique features of TikTok is part of the debate. Is that kind of how you see this as well? Would you frame it in those terms?
- [07:41]
A
So yes and no. So I do think that a big piece of it is free speech versus national security, right? You have TikTok, which is a US company and it has free speech rights. But also perhaps, I think more importantly, the 170 million Americans who regularly use the platform, they have free speech rights. And there's no question that those rights are being profoundly infringed upon by this law. Now you can ask about what are the alternatives and, you know, how harm are these people really going to be, but that's all secondary. You know, at the end of the day, people do have a right to choose the platform they want to communicate on. And a law that potentially bans TikTok, even though it has this divestment option, obviously infringes on that right. And then on the other side of the equation, you have the national security concerns, concerns about data privacy and concerns about manipulation of the algorithm and the platform by the Chinese. But there's also an element of this case which is a kind of dispute within the first Amendment itself, because it's true that people have the First Amendment right to choosing a platform, but they presumably also have a First Amendment right, or at least they have a free expressive interest in having a platform that is itself not controlled secretly by a foreign power that has the means and motivations to distort that platform. And this is something that the D.C. circuit, in upholding the law last month really emphasized. They said, look, Congress is not just waiving the national security flag, they're also in some sense actually advancing the First Amendment, advancing free expression by making sure that one of the dominant communications platforms, and in particular the one that is used by, you know, most American young people not just to sort of watch fun cat videos, but to get their news, to engage in political debate, that that platform is itself not being distorted by a foreign power. And I think the fact that there is this kind of intra First Amendment fight is what certainly made the D.C. circuit more comfortable upholding this law because they didn't just have to say national security wins. They could say national security wins. And actually, the First Amendment argument is not straightforwardly on TikTok's side, and I suspect that's going to come up as well in the argument later today. And when I expect the Supreme Court upholds the law, I suspect that they will emphasize that as well.
- [09:59]
B
You know, one thing I'd be curious to get your thought on, because perhaps you disagree, but it seems to me the Biden administration and Congress have not fully laid out the evidence that they have for why TikTok and its parent company, ByteDance, pose a national security threat. I mean, yes, there's been talk of data privacy, there's been talk of concerns about propaganda and manipulation, but we haven't really heard or seen much evidence that that is in fact happening. Are the arguments today a chance to potentially lay that out more, or is that something that would help the government at all in this case?
- [10:36]
A
I don't think we're going to get into any sort of evidentiary issues or certainly not present any more evidence today. I think all of that was raised at the D.C. circuit. And in addition, some of the juiciest evidence is classified. It was provided in a classified way to Congress, and it was also provided in a classified way to the D.C. circuit. But it is notable that the D.C. circuit upheld the law only on the public record. So they emphasized we got all this classified information. TikTok didn't like that. But just to be clear, we're not relying on any of that classified information to uphold the law. And I think the reason for that, and I think they were right to do so, is because, although you are correct, that the government has not presented in, certainly not in the public record, and I think also probably not in the classified record evidence of these dangers happening on TikTok right now. Right that right now Xi Jinping is calling the head of ByteDance, who is harvesting data from TikTok and sending it to the Chinese intelligence agencies. Or is, you know, necessarily tweaking the algorithm on the behest of the Chinese government, although there's not evidence of that happening. What there is is everything but that evidence, which is to say, or the analogy I've used in the past is there's no smoking gun, but there's a gun, it's loaded, it's pointed at us, the finger is on the trigger. And the question for the courts to decide is, is that enough for Congress to be able to say well, we want to solve this problem or at least mitigate it before the emergency happens. And so let me say a little bit more about what that evidence of everything but is. Yeah. So on the data privacy side, there is no question, there's just no question that the Chinese government engages in massive amounts of espionage and it continues to do so. That's not even a. I'm not even saying that as a criticism. Right. Like they're going to do what they're going to do. I hope we do the same to them. That's just how it works in the world. And you know, as someone who worked in the government for several years, I am the proud owner of several lifetime free credit monitoring subscriptions courtesy of the US Government because my security clearance data has been stolen several times by the Chinese of me and millions of my colleagues. So this data privacy threat is anything but speculative. As to the content manipulation concern, we do know that the Chinese government gets extremely sensitive about how it is portrayed around the world and that it is willing to go to great lengths to sort of manipulate those portrayals in the information environment. So there are lots of examples of this. But just to give one, several years ago, the general manager of, I think it was the Houston Rockets, the basketball team tweeted something in support of the Hong Kong democracy protests, Right. And in response, the Chinese government basically shut down NBA broadcasts, certainly of the Houston Rockets and maybe of the entire NBA. I don't remember the exact details in China, which is a massive market for the NBA. So the Chinese government is willing to really throw its weight around. We also know that the Chinese government does not consider private companies in China to be private in the way that we consider that in liberal democracies, every Chinese company, both by Chinese law, but more importantly by Chinese authoritarianism, is or can be a arm of the Chinese state. And the Chinese government is absolutely willing to harm its companies if it believes that it is in its interest. So to give another example, Jack Ma, the founder of Alibaba, which is a giant Chinese e commerce platform, a few years ago, made some statement. It wasn't even that provocative kind of whining a little bit about Chinese tech overregulation, and he disappeared, just vanished for a few years. In the interim, Alibaba base got sold for parts, which, you know, is not great just from a Chinese tech sector perspective, given that it is one of China's leading tech companies, but that's what happened. And then Jack Ma resurfaced recently and now doesn't say much about anything. So again, this is another example of how if the Chinese government wants to burn a Chinese company for its own interests, like for example, burning ByteDance and burning TikTok by doing really heavy handed content manipulation in the event of, let's say, a shooting war between the United States and China over Taiwan, they will 100% do that. So that's the question. Right. And again, I don't think these facts are in dispute. Exactly. Everyone recognizes that there's no smoking gun, but everyone also recognizes that there's a lot of really dangerous smoke. And so what do you do about that?
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B
Right.
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A
And the question for the courts is not how you balance that, but are you going to defer to the Democratic branches of government, Congress and the president, when they decided in a overwhelming bipartisan fashion that it's scary enough the situation that it's worth banning the app.
- [14:55]
B
As you said, those arguments you just laid out were certainly convincing for the appeals court and we'll see soon if they are convincing for the Supreme Court. I do wonder here about the court of public opinion, because no matter what happens with the Supreme Court, Trump will inherit this issue in 10 days when he takes office. On the one hand, you have TikTok, this wildly popular platform among American users. On the other hand, you know, Trump has really pledged to be tough on China and has echoed some of the concerns that you just outlined. What sort of political predicament does this put him in? If he rolls the band back or not, it seems like he's got a tough choice there in some ways.
- [15:36]
A
That is an excellent question and I don't have a good read because you have so many interlocking pieces. I mean, first there's this question of can he roll the ban back? And we can talk about what he could do, but it's not obvious that he, that he can. He can certainly try. Whether it works or not is a different question. There's also just this question of how will Americans react to the ban? I don't think we know. Right. I think right now, I think for a long time TikTok and its users have sor been in quiet denial that this was going to happen. They just kind of assumed that someone was going to swoop in and save them. And I don't think that's going to happen. Like, I think this ban will go into effect on the 19th. That doesn't mean TikTok is going to disappear on the 19th, but some stuff is going to happen. We'll have to see. I suspect people will be extremely angry for a while. The question is how long and will they care? That depends on something. We just don't know which is how sticky is TikTok? You have 170 million users. Some of those users are super hardcore and they love TikTok. And they will just like they will, they will go to the mat for TikTok.
- [16:26]
B
They're almost addicted.
- [16:27]
A
You could say they're almost addicted. But how many of those users, what percentage of those users is that? And how good are the substitutes? Right? I mean, TikTok is not the only algorithmically driven short form video platform out there. There's YouTube shorts, there's Instagram Reels. Now, maybe the TikTok is better in some sense, maybe their algorithm is somewhat better, maybe their network is somewhat better, but I'm skeptical that it's orders of magnitude better. I'm skeptical that this is some sort of irreplaceable product. And so it's possible that although there will be several months, maybe a year of disruption as the ecosystem kind of reconfigures itself, it may very well be that we're sitting here in, you know, the fall and TikTok is out of shell of itself, but everyone has just kind of migrated to other platforms and it's sort of fine. Or maybe not. Or maybe everyone is still super annoyed. We just don't know the answer to that question. And then even if Trump wants to help TikTok, what happens if he helps TikTok and then a year later there's some disaster and we discover that China has been aggressively manipulating the TikTok algorithm?
- [17:21]
B
Right.
- [17:21]
A
Does Trump want to own that possibility? So I just think it's very hard to predict and we'll just have to see how this shakes out.
- [17:28]
B
Well, I think the next two weeks are going to be pretty telling, so we'll have to stay in touch. Alan, I appreciate you being here on Politico Tech.
- [17:34]
A
Thanks for having me.
- [17:36]
B
That's all for today's Politico Tech. If you enjoy Politico Tech, be sure to subscribe on Apple, Spotify or your preferred podcast player. And for more tech news, subscribe to our newsletters, Digital Future Daily and Morning Tech. Music in our show comes from the mysterious Breakmaster Cylinder. Our managing producer is Annie Reiss. Our producer is Afra Abdullah. And our editors are Steve Heuser, Daniela Cheslo and Louisa Savage. I'm Stephen Overle. See you back here on Monday.