POLITICO Tech Podcast Summary

Episode Title: Trump wants to save TikTok. His options are limited.
Release Date: January 18, 2025
Host: Stephen Overlea
Guest: Alan Rosenstein, Professor at the University of Minnesota Law School and Senior Editor at Lawfare

Introduction: Inauguration Day and TikTok at the Forefront

POLITICO Tech opens on a pivotal moment: January 20th marks Donald Trump's inauguration as the 45th President of the United States. With an aggressive policy agenda slated from day one, President-elect Trump has signaled that TikTok will be a top priority on his docket. As highlighted by host Stephen Overlea at [00:33], "Trump has vowed to save TikTok, perhaps with an executive order, perhaps with some legal magic, because the gray area here, well, it's big."

To delve deeper into Trump's options regarding the TikTok ban, Overlea welcomes Alan Rosenstein, an expert in law and national security, to unpack the complexities surrounding this high-stakes issue.

Understanding the TikTok Ban: Current Status and Enforcement

At [02:00], Overlea sets the stage: TikTok is technically banned in the U.S., a decision upheld by the Supreme Court in a 9-0 ruling. However, the outgoing President Joe Biden left the enforcement of this ban ambiguous, leaving it to the incoming administration. Rosenstein explains, "TikTok has voluntarily shut down all its services in the United States, even though the law does not require anything of TikTok itself. The law goes after the app stores and the cloud service providers."

This distinction is crucial because it means that while TikTok isn't actively being enforced against its own operations, the infrastructure supporting it—like Apple, Google, and Oracle—could face significant penalties if they continue to allow the app's usage. Rosenstein emphasizes the precarious position of these companies: "If you're one of these companies, if the president says, I'm not going to enforce this law, well, that doesn't mean the law goes away. That doesn't mean that you're not violating the law."

Trump's Possible Strategies to Reverse the Ban

Overlea probes into the viable strategies Trump might employ to salvage TikTok. Rosenstein breaks down several options:

1. Non-Enforcement of the Ban:
   Rosenstein notes at [02:24], "He absolutely can [decide not to enforce this ban], but it's not clear that that would actually accomplish the objective." Without full divestment from Chinese ownership, merely ceasing enforcement could lead to hefty fines for service providers.

2. Executive Orders:
   Addressing the potential use of executive orders at [03:38], Rosenstein demystifies their power: "An executive order is just a press release with nicer stationery... the President either has the power to do something or does not have the power to do something." He cautions against viewing executive orders as having special status akin to laws.

3. Declaring Divestment:
   Trump could announce a divestment has occurred, even if it hasn't: "This is an arguably illegal act, but the President could still do it and then see how... Apple and Oracle... would react." However, without actual divestment from TikTok's Chinese parent company, this maneuver would likely face legal challenges.

4. Constitutional Arguments:
   Rosenstein discusses the possibility of Trump claiming the ban infringes upon his constitutional powers:

   "TikTok is a potentially Chinese controlled entity... The Constitution gives the President a lot of really important national security and foreign policy powers... but the Constitution also gives Congress a ton of national security and foreign policy powers."

   He warns this stance could be seen as a power grab, undermining the balance of powers outlined in the Constitution.

Supreme Court's Unanimous Decision Upholds the Ban

At [11:44], Overlea shifts focus to the Supreme Court's decisive 9-0 ruling, which upheld the TikTok ban. Rosenstein reflects:

"It was broadly what we expected... the Supreme Court upheld the law... but from the perspective of folks like me, it's a little bit of a disappointing opinion because it ultimately says so little."

He highlights that the Court narrowly based its decision on data privacy concerns rather than broader content manipulation issues, leaving future tech policy uncertainties unresolved.

Implications for Other Chinese-Owned Apps and Future Policy

The conversation turns to the potential rise of apps like RedNote, another Chinese-owned platform gaining traction among former TikTok users. Rosenstein expresses skepticism about its longevity:

"I suspect that the vast majority of those users are just normies who want to watch short form video content... They're going to move to Instagram Reels or YouTube shorts... RedNote is going to be kind of a flash in the pan."

However, he underscores the legislative foresight:

"The law actually has a back half that gives the President the discretion to trigger similar divestment or ban processes for other Chinese controlled social media applications as they arise and get to a particular critical size."

This provision aims to create a regulatory framework to manage future threats proactively, mitigating the need for emergent legislative actions each time a new app surfaces.

Concerns Over Trump's Foreign Policy Leverage and National Security

A critical point of discussion arises around Trump's diplomatic relations, particularly with Chinese leader Xi Jinping. Rosenstein voices deep concerns:

"What is to stop Trump rather from, I don't know, selling out the Uyghurs or selling out Taiwan... Xi Jinping is in a fabulous negotiating position because he has someone sitting across from him, Donald Trump... who doesn't really care about the Uyghurs... what keeps me up at night."

He fears that personal motivations intertwined with national security could lead to compromised decisions detrimental to U.S. interests.

Conclusion: The Uncertain Path Forward

As the episode wraps up, Overlea and Rosenstein reflect on the broader implications of the TikTok saga. Rosenstein remains hopeful yet cautious:

"I think it's important, and I'm glad it was upheld, and I hope it gets enforced... But if national security isn't the real motive, what even is the real motive at this point?"

The episode underscores the intricate dance between technology, law, and international relations, highlighting the challenges that lie ahead in balancing national security with corporate interests and democratic principles.

Notable Quotes:

• Stephen Overlea [02:00]: "Trump has vowed to save TikTok, perhaps with an executive order, perhaps with some legal magic, because the gray area here, well, it's big."

• Alan Rosenstein [03:38]: "An executive order is just a press release with nicer stationery... the President either has the power to do something or does not have the power to do something."

• Alan Rosenstein [11:58]: "TikTok is over 170 million users... But that margin does not feel good in terms of the decision itself."

• Alan Rosenstein [16:47]: "What worries me... is if Trump decides that he wants to make a sale of TikTok... He likes TikTok because people on TikTok were nice to him in the campaign and because one of his big funders, Jeff Yass, is a ByteDance investor."

This comprehensive summary encapsulates the critical discussions and insights from the POLITICO Tech episode, providing a clear understanding of Trump's limited options to reverse the TikTok ban and the broader implications for technology and policy.