The legal battle over the TikTok ban, explained

Summary

POLITICO Tech Podcast Summary: "The Legal Battle Over the TikTok Ban, Explained"

Release Date: December 9, 2024
Host: Stephen Overlea
Guest: Kerry Cordero, Senior Fellow and General Counsel at the Center for a New American Security

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Introduction

In this episode of POLITICO Tech, host Stephen Overlea delves into the tumultuous legal battle surrounding the potential ban of TikTok in the United States. With national security concerns at the forefront, the discussion unpacks the recent federal appeals court ruling, the implications for TikTok and its parent company ByteDance, and the broader context of US-China tech competition.

Court Ruling and Its Implications

Timestamp [00:32]: Stephen Overlea introduces the episode by highlighting the federal appeals court's decision that empowers Congress to mandate TikTok's owner, ByteDance, to either sell the app or shut it down. The court prioritized national security concerns over First Amendment arguments presented by TikTok and free speech advocates.

Timestamp [02:25]: Kerry Cordero reflects on the ruling, stating, “That it was a very strong endorsement of the government's view.” She emphasizes the court's deference to the executive branch on national security issues, affirming Congress's authority to enforce divestiture of TikTok from ByteDance.

Timestamp [04:23]: Cordero breaks down the court’s reasoning regarding the First Amendment. She explains that the court applied strict scrutiny, requiring the government to demonstrate a compelling interest and that its approach was narrowly tailored. The court found the national security arguments sufficiently persuasive, particularly the risks associated with TikTok's potential manipulation by the Chinese government.

National Security Concerns

Timestamp [06:31]: Overlea probes whether the court's decision validates the government's national security concerns, given the lack of public evidence. Cordero responds by quoting the decision: “to preclude a foreign adversary from manipulating public dialogue,” indicating that while classified information influenced the ruling, the public rationale centered on preventing foreign manipulation of US public discourse.

Transparency and Legislative Measures

Timestamp [08:15]: Overlea raises concerns about the government's transparency. Cordero points out that Congress did not mandate the declassification of specific evidence before passing the law, which limited public understanding of the security threats. She also highlights the existing Foreign Agents Registration Act, questioning why it wasn't utilized to increase transparency about TikTok's operations related to foreign influence.

Political Dynamics and Future Outlook

Timestamp [13:28]: The conversation shifts to the political landscape, particularly President-elect Donald Trump's stance. Although Trump has expressed opposition to the ban, Cordero explains that the bipartisan nature of the law restricts his ability to easily overturn it. However, she notes potential avenues for delay, such as securing a credible buyer or enacting new legislation to extend the enforcement timeline.

Timestamp [15:24]: Looking ahead, Cordero anticipates that TikTok will likely appeal to the Supreme Court due to the case's novelty and significant public interest. She anticipates the Court's involvement could further shape the legal framework surrounding social media platforms and national security.

Broader Implications for US-China Tech Competition

Timestamp [16:05]: Cordero expresses concern that the approach taken against TikTok may set a precedent resembling authoritarian measures, potentially leading to inconsistencies in how the US handles foreign-owned tech companies. She warns of a "whack-a-mole" scenario where each new platform from different countries could face similar bans, challenging the sustainability and consistency of such policies with American values of a free and open society.

Timestamp [17:40]: Overlea echoes this sentiment, noting the irony that US policies aimed at countering China’s influence are beginning to mirror China's own restrictive approaches to technology and information.

Conclusion

Kerry Cordero provides a nuanced analysis of the TikTok ban, highlighting the delicate balance between national security and constitutional freedoms. The episode underscores the complexities of regulating global tech platforms within the current geopolitical climate and anticipates ongoing legal and political battles as the situation evolves.

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Notable Quotes:

• Kerry Cordero [02:25]: “That it was a very strong endorsement of the government's view.”
• Kerry Cordero [04:23]: “to preclude a foreign adversary from manipulating public dialogue.”
• Kerry Cordero [17:40]: “This approach is more similar to what countries like China do themselves... inconsistent with the United States laws and constitutions and traditions of a free and open society.”

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This comprehensive summary captures the essence of the episode, providing listeners with a clear understanding of the legal, political, and security dimensions of the TikTok ban without needing to access the original podcast.

Transcript

[A]

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[B]

Hey, welcome to POLITICO Tech. Today's Monday, December 9th. I'm Stephen Overlea. The government's plan to potentially ban TikTok next month is still on schedule, at least for now. A federal appeals court ruled on Friday that Congress can legally force TikTok's owner to either sell the app or essentially shut it down. And the three judges on the case determined arguments that the law violates the First Amendment were ultimately trumped by concerns that TikTok and its parent company, ByteDance, pose a national security threat. For its part, TikTok has indicated it will appeal to the Supreme Court. The company has long disputed that its ties to China pose a risk to US Citizens and their data. And they say the law amounts to censorship. Of course, there are also unanswered questions about whether President elect Donald Trump will intervene when he takes office one day after the ban is set to begin. To help me parse through the ruling is longtime national security lawyer Kerry Cordero. Kerry worked on counterterrorism and counterintelligence cases at the Justice Department and in the Office of the Director of National Intelligence. And she's now a senior fellow and general counsel at the think tank center for a New American Security. On the show today, Carrie and I break this all down and talk about what's next. Here's our conversation. Kerry, welcome to Politico Tech.

[A]

Thanks so much. Glad to be with you.

[B]

Of course. So all last week we were sort of anticipating that a TikTok decision was coming. And then Friday, mid morning, it dropped. What was your first reaction to this decision?

[A]

That it was a very strong endorsement of the government's view. So the D.C. circuit has ruled against TikTok in favor of the government's position, provided a significant amount of really total deference to the government, to the executive branch on its national security arguments and upheld Congress's law to force divestiture of TikTok from its Chinese parent company, ByteDance.

[B]

And you've been around national security law a long time. You've worked in a number of federal agencies. Was that surprising to you to see the court do that?

[A]

So the court's deference to the government on national security matters actually is consistent with its longstanding approach to national security matters. What's different about this case is, number one, the specific law that Congress passed. So the fact that we have a law that was passed by Congress bipartisan fashion, based on the national security justification provided by the government and moved through Congress in a pretty fast clip as legislative matters go, passed last spring, orders divestment. And really, although there is a provision that it hypothetically could be applied to other types of companies, it really is geared towards TikTok specifically. And because this is a communications platform, because this is social media, because it's used by 170 million Americans, it's different than other national security cases.

[B]

One of the main arguments that TikTok made that the court obviously shot down was that the law violates the First Amendment. And it wasn't just TikTok making that argument. We saw a number of free speech groups also kind of line up trying to make that case. The court determined, though, that that doesn't really apply here. Can you break down for us, you know, especially us non lawyers, kind of the reasoning that the court gave here?

[A]

Sure. So the court applied the highest level of scrutiny that it can in a First Amendment case, which is strict scrutiny. And so it said that the government had to prove two things. The government had to prove that it had a compelling interest and that the approach that it's used is narrowly tailored. So a significant part of the opinion discusses the compelling interest. In other words, that the court was more than satisfied based on the national security arguments that both that the government provided to Congress to inform its passage of the legislation, and then also in the record of this case before the D.C. circuit, that the government satisfied that the national security concerns of TikTok and the Chinese parent being susceptible to being manipulated by the Chinese government.

[B]

Right.

[A]

That that was very persuasive and very compelling. And so on that compelling interest test, the court was satisfied. The second piece is that the court considered whether the law as a divestment was narrowly tailored. And on that, the court also agreed with the government because it viewed that this law that was passed by Congress, which again isn't an outright ban, but forces divestment of the company to a different owner. If that doesn't happen, then it will end up sort of as a de facto lack of access or ban. But the divestment is a tool that is narrowly tailored. And so the court was satisfied on both of Those points.

[B]

Right. You mentioned some of the concerns that the government has raised around national security, particularly concerns that TikTok could perhaps be funneling data to the Chinese government or that its algorithm could be subject to manipulation by the Chinese government. The government, though, hasn't provided public evidence to back that up. That's been one of the big question marks here. I wonder, in your view, I mean, does this decision by the court kind of substantiate those concerns in a meaningful way?

[A]

Well, what it does is the court did say that it acknowledges the government's aim, and I'm going to quote from the decision here, to preclude a foreign adversary from manipulating public dialogue, unquote. So the basis on which Congress passed the law was a general argument that the government made publicly. And then a lot of classified information that the executive branch and the intelligence community provided to Congress. And members of Congress went to these briefings, and they were so spooked by what they heard in those briefings that they were satisfied that they needed to pass this law. And again, it was done on a bipartisan basis. The court then was able to look at two things. The court was able to look at the fact that Congress was clearly satisfied from the classified information that it had been provided with such that it passed the law. And two, the record before the court included briefing an argument from the government which included some public information, but also classified briefs that were provided by the government to the court. And you're correct in that that information is not public. And so from my perspective, as an outsider and as a national security lawyer, watching these arguments being made, I do think as an outside analyst, that there is a question about whether the government has significantly made the case publicly for its arguments that the platform can be manipulated. Now, again, Congress has passed the law, and so that is sort of the mechanism through which the government can say, well, we've satisfied enough that Congress has passed this public law.

[B]

Right. Well, you know, I'm obviously watching this as a journalist. I'm in favor of open records, everything, as you can imagine. But I guess that's one question I sort of ask is like, you have 170 million Americans on this platform, people doubting, like, why this divestiture or ban law is even in place, like, why wouldn't the government just reveal more about its thinking and the evidence it has that is really basing this decision on.

[A]

Well, because it wasn't forced to. In my judgment, the time for that to have happened would have been if Congress would have required more declassification leading up to its passage of the law. Now that the law is passed, the impetus for the government, or the argument that the government should release more doesn't exist as much because the courts are willing to accept the classified information and they can look to this legislative record that was satisfied. The other piece of this that I think is missing is again pointing back to the court's assessment that the government is focused on trying to keep the PRC from manipulating the public conversation that goes on in the United States. And what's interesting in this particular situation is that we actually have a law on the books that is intended for that exact purpose, and it's the Foreign Agents Registration Act.

[B]

Right.

[A]

And it's been on the books for almost a hundred years. It was a law that was originally intended to address Nazi propaganda, and it still exists. And what it does is it is a registration framework whereby a company or a person that the government assesses is working in the interests of a foreign principle. And interestingly, the government has never required TikTok to register as a foreign agent. So for me, there is a question about why, if the government's position is that this platform is controlled by a foreign adversary trying to influence public opinion, why would you, the government, not use the specific law that is geared towards providing transparency about foreign entities trying to influence US Public opinion? There's just a. There's a question there that is outstanding.

[B]

And has TikTok or anyone else raised that question? I mean, I think for obvious reasons, TikTok would not want to register as a foreign agent. But, you know, I wonder if they've made that argument or if doing so would in some way have. Have limited some of these criticisms.

[A]

Yeah, it would not be in their interest to make the argument, but there have been. There's at least one member of Congress who has raised this question.

[B]

Interesting. I guess, going forward now, you know, this ruling is obviously a blow to TikTok's US business, but the fight is not done because the company can appeal to the Supreme Court. I wonder what you're watching for going forward, especially because, you know, this ban is expected to go into effect in a little over a month.

[A]

I would be surprised if they do not appeal. So I expect TikTok to appeal. And I'm inclined to think that the Supreme Court would take this up because of the novelty of it, because of the public interest in it, because it is a new law. It is a new application of law to a communications platform, again, that's used by 170 million Americans, and the prospect of them losing that access to a method of communicating with one another and posting content so suddenly on a date certain in January is unusual. And so for those reasons, I do think that the Court will take it up. I would be curious to see Whether or not TikTok and the content creators who were also part of this case make more arguments to the Supreme Court from the perspective of the content creators, because the D.C. circuit opinion really focused on TikTok's arguments and did not give equal time in its opinion or assessment to the arguments being made by the content creators. And so I do wonder whether there's more opportunity for the US Citizens who are creating content on this platform to improve and strengthen their arguments before the Supreme Court. This episode is brought to you by Atlassian Atlassian makes the team collaboration software that powers enterprise businesses around the world, including over 80% of the Fortune 500. With Atlassian's AI powered software like Jira, Confluence and Loom, you'll have more time to do the work that matters. In fact, Atlassian customers experience a 25% reduction in project duration per year. Unleash the potential of your [e-mail] Atlassian.

[B]

The other factor at play here is politics has become so enmeshed in this, of course. Right. I'm sure. As you know, President elect Donald Trump has said he doesn't agree with banning TikTok. He's talked about saving company once he's president. It's sort of fascinating to me. But this ban is slated to go into effect January 19th. Trump becomes president again on January 20th. Is it clear what, if anything, he can do here?

[A]

Yeah, he's in a tough position here because this bill has bipartisan support. There are a number of Republicans who very strongly supported this law when it was passed and voted for it. And the law itself doesn't really provide an off ramp for a president. One option it provides is that a president can delay the penalties for 90 days if there is a, and I'm paraphrasing here, sort of a credible buyer discussion going on. So we've got a few weeks before January 19th for that potentially to happen. So that's one opportunity for him. The other avenue that he has available to him would be to convince his allies in Congress to pass another law.

[B]

Right.

[A]

And the easy way to do that would be for them to just delay the clock. In other words, they could sort of save face by passing a quick law in January that doesn't change most of it, but extends that clock maybe for another 12 months, for example, or even six months. And you know so that would be sort of a technical fix that maybe because the Republicans, again, which will be the future president's party, control both houses, maybe they could go down that path.

[B]

Right. If, as you said, it's passed with bipartisan support. So he would certainly have to convince a lot of those lawmakers to. To make a change to the law they've already passed. And I guess one last question for you, Carrie. If we take a step back from just TikTok, this whole issue exists in the broader context of US China, tech, competition and national security concerns when it comes to China. And TikTok is not the only big tech company wrapped up in that broader debate. I wonder if you see this law as paving the way for how the government might approach companies that sort of operate in US And China and maybe raise some tech concerns.

[A]

So it might. And that's actually why, contrary to, as a national security lawyer, where I normally would be inclined to align on this issue, I'm not convinced that the approach taken in this case is really the most sustainable path for the future. And I do worry that this approach is more similar to what countries like China do themselves, which is limit access of their citizens to social media and communications platforms that originate from the United States and other parts of the world. So I worry that this is an approach that authoritarian countries tend to use. And how will the United States approach the next piece of technology or the next, you know, that is a communications platform that maybe doesn't originate out of China or Russia or a known adversary country, but maybe originates out of some other country like a Turkey or somewhere else in the world. Where is our approach going to be each time we're going to play whack a mole and we're going to ban access to that app. And so I think there is just a real question about whether this approach is sustainable and consistent with the United States laws and constitutions and traditions of a free and open society.

[B]

Yeah, I think that's such a good point because one of the great ironies to me is that as the US in recent years has tried to compete more with China and counteract China, in some ways its policies have started to look more like China's. Melissa and Carrie, appreciate you spending time with us being here on Politico Tech.

[A]

Thanks so much. It's great to be with you.

[B]

That's all for today's Politico Tech. If you enjoy Politico Tech, be sure to subscribe. And for more tech news, subscribe to our newsletters, Digital Future Daily and Morning Tech. Our managing producer is Annie Reese. Our producer is Afraid Abdullah. I'm Stephen Overlea. See you back here tomorrow.