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- [00:01]
Alan Rosenstein
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- [00:33]
Stephen Overlea
Hey, welcome to POLITICO Tech. Today's Monday, January 20th. I'm Stephen Overlea. It's inauguration Day, and at noon, Donald Trump will officially become president. His team has signaled an aggressive agenda from day one. So I'll be watching for executive orders to start flying in just a few hours. And a top priority will be what to do about TikTok. The app is now technically banned in the US though outgoing President Joe Biden is leaving any enforcement of that ban to his successor. And 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. And to get a better idea of Trump's options, I called up Alan Rosenstein. Alan is a professor at the University of Minnesota Law School and a senior editor at Lawfare who previously worked as an attorney in the Justice Department's National Security Division. You'll recall Alan was just on the podcast to break down TikTok's appearance at the Supreme Court, which decided on Friday to uphold the ban. Now Alan is back to break down what could happen next in this saga. Here's our conversation. Alan, welcome back to Politico Tech.
- [01:59]
Alan Rosenstein
Thanks for having me.
- [02:00]
Stephen Overlea
The twists and turns of this saga continue. We're talking about TikTok. President Trump officially takes office today, and he's going to need to move quickly to save TikTok, which he's promised to do. There is a ban in place right now. It's not being enforced. I want to talk through Trump's various options here. And door number one, you know, can Trump just decide not to enforce this ban and kind of leave it there?
- [02:24]
Alan Rosenstein
He absolutely can, but it's not clear that that would actually accomplish the objective. So if the goal is to keep TikTok in the United States, and I should also make clear that 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. So going back to this non enforcement question, 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.
- [02:54]
Stephen Overlea
Right.
- [02:55]
Alan Rosenstein
So if I were the general counsel of Apple or Oracle, I would not tell my CEO client, oh, sure, Trump has said he's not going to enforce the law, so let's happily violate it because the fines are $5,000 per user that accesses TikTok, and we're talking about 170 million users users here. So it's a lot of money even for the big companies.
- [03:13]
Stephen Overlea
Right. And, you know, Trump obviously could change his mind at some point about enforcement or the next president could, you know, not, not agree with that decision. So these companies would sort of be in a very precarious position. The incoming administration, though, has suggested there might be an executive order coming kind of addressing this issue. I'm curious what you think Trump could realistically do on his own to reverse this ban.
- [03:38]
Alan Rosenstein
Sure. So first, I want to address this question of executive order, because that has been in the news a lot. There's nothing special about a, quote, executive order. The way I've described it is an executive order is just a press release with nicer stationery. At the end of the day, the President either has the power to do something or does not have the power to do something.
- [03:56]
Stephen Overlea
Right.
- [03:57]
Alan Rosenstein
But sometimes I think people think that an executive order is something like a law. It has some special status. It does not. So let's just talk about the things that the President could do in some capacity. So declaring non enforcement is one of those things. And we've talked about why that may not be very effective. Another thing he could potentially do is he could announce that a divestment has in fact taken place, even though it has not. This is because the law actually gives him some role in determining when a divestment has occurred. A divestment, of course, has not taken place. And so this would be an arguably illegal act, but the President could still do it and then see how, again, the relevant players here, which I just want to emphasize again, are not TikTok, it's Apple and Google and Oracle, how they would react. The president could try to extend the divestment process by 90 days, and the law actually gives him the power to do so. But the law also provides that only works if a divestment is in process. And not only that there are legally binding agreements, but of course, nothing like that is happening. And then finally, what Trump could do, and he kind of hinted at this when he asked the Supreme Court to pause the law. He said, well, maybe he could say this law is just unconstitutional, not as applied to TikTok for First Amendment reasons, but because interferes with Trump's commander in chief for foreign relations powers under the Constitution. That would be a very dramatic argument. It's a bad one, to be clear, but, you know, Trump could say lots of things. Again, the question is the audience really is Apple and Oracle. And again, if I'm their lawyer, I am not going to be happy with anything short of Congress repealing this law or an actual honest to goodness divestment in which TikTok is no longer a Chinese controlled company.
- [05:32]
Stephen Overlea
Got it. It's interesting, the idea of Trump trying to make an argument that it sort of interferes with his functions as president. I mean, we do know that he has spoken recently with Chinese President Xi Jinping, and TikTok is one of the topics that they've discussed. So clearly this is already sort of part of his foreign diplomacy and relationship with China. And so it would be interesting if he sort of builds an argument around that.
- [05:55]
Alan Rosenstein
It would be interesting, but I want to say it'd be very bad. And I know this is a tech policy podcast and not a constitutional law podcast, but why?
- [06:00]
Stephen Overlea
Why bad, though? Walk me through that.
- [06:02]
Alan Rosenstein
The Constitution gives the President a lot of really important national security and foreign policy powers. The President is the commander in chief. The President's the chief diplomat. All of that's really, really important. But the Constitution also give Congress a ton of national security and foreign policy powers. Congress declares war, it runs the military, it regulates commerce with foreign nations. The Senate ratifies treaties. So Trump's argument that anything that touches foreign policy is the President's alone is both false. But even worse than that, it would be a huge power grab. And as we are looking forward to the next four years of what could be a very concerning administration for democracy and the rule of law, arguments like this, while they are far fetched, make me very nervous. And I say this wearing my con law professor hat, not my law and tech professor hat.
- [06:46]
Stephen Overlea
Got it, Got it. You know, one question that I have, and I'm not a lawyer, I'll preface this by saying, but the law does lay out, as you said, a way for the President to kind of delay the ban if TikTok is genuinely pursuing some type of sale. What does the law say about the President reversing a ban once it's already in effect?
- [07:05]
Alan Rosenstein
Yeah. So here the law is actually very clear. The President can reverse the ban as soon as a divestment occurs. And this is actually an important part of the law. And this was important both for the constitutionality of the law and also I think what Congress wanted. This was never about TikTok per se. This was about TikTok being controlled by a Chinese entity. And so the law explicitly provides that even if TikTok is banned on the 19th, the moment a divestment is finished and certified by the President, TikTok can come right back into the country.
- [07:32]
Stephen Overlea
Got it. You know, one path here would be for Trump to go to Congress, get Congress to pass some law revoking the ban or delaying the ban. Interestingly, you know, last week we saw that Hill Democrats were really open to that idea. I see you're not a fan. And key Republicans were not a fan either. They were against this. Do you think the politics around this kind of close off the Hill as an option for saving TikTok?
- [07:58]
Alan Rosenstein
I don't know. I am skeptical frankly that there are going to be enough votes and a filibuster proof majority in the Senate to reverse what Congress did on a near unanimous basis less than a year ago. I mean, look, crazier things have happened and maybe if the Democrats get enough flak from their constituents and Trump can twist enough Republican lawmakers arms, maybe you could have something. And obviously an extension and 180 day delay would be probably an easier pill to swallow than repealing the whole law. But I'm still very skeptical that's going to happen. Both because I think substantively that's not what most of Congress wants. I mean, they passed this law for a reason.
- [08:36]
Stephen Overlea
Right.
- [08:37]
Alan Rosenstein
And also it's just such a bad look. I mean it's already so embarrassing for the Senate Majority Leader Chuck Schumer, as he did on Blue sky last week, to say, actually this bill I voted for, maybe we should extend it by a little bit because it'll hurt influencers. I mean that's so embarrassing and it's just really bad. Also for the long term credibility of Congress when Congress enacts a law and is telling the Supreme Court, hey, you guys have to uphold this because we, you know, in our solemn obligation as the first branch of government made an important national security determination that has to be credible. Like if they then right before the law goes into effect, say jk turns out this was all posturing and we're scared and like we're willing to go back on our national security determinations because we don't want to piss off some tech influencers. Again, whatever you think about the merits of the law, that is very bad for Congress's long term credibility. And so, for all these reasons, I think the congressional path here is broadly foreclosed.
- [09:32]
Stephen Overlea
I think that's a really important point because, you know, without taking any sort of personal position on the TikTok ban, I have sort of been watching this debate and kind of questioning, like, where's the conviction here? You know, because Republicans and Democrats have argued for years now that TikTok is a national security threat, both parties voted overwhelmingly to pass this ban. The Biden administration has defended it in court, and now it's just sort of not being enforced. You have lawmakers talking about walking it back. I think a lot of people look at that and kind of question whether national security is the real motive here.
- [10:05]
Alan Rosenstein
Well, if national security isn't the real motive, what even is the real motive at this point? I mean, if Congress isn't willing to defend this law, it's not even clear what they're doing. I mean, it just makes them look silly.
- [10:15]
Stephen Overlea
Right.
- [10:16]
Alan Rosenstein
I mean, I use some. Some spicier language, but this is a family show. Right. It just makes them look really silly.
- [10:21]
Stephen Overlea
Yeah. I think, you know, when there's been so much skepticism of this law in general, and we're going to talk about the Supreme Court here in a second, but the court of public opinion has been such an important part of this. 170 million Americans use this app. And so you have to convince them that actually banning this thing is in the nation's best interest. And I think. I think there are, frankly, a lot of users of TikTok who are not yet convinced of that.
- [10:45]
Alan Rosenstein
Yeah. And I will say, I mean, I'm happy to take a position on the law. I think it's a good law. At the end of the day, I think it's important, and I'm glad it was upheld, and I hope it gets enforced. And saying all that, I completely understand the frustration and rage that so many TikTok users must be feeling right now. Not just because they can't use their favorite platform, but because Congress seems so spineless. In the 11th hour. Make your next move with American Express Business Platinum. You'll get five times membership rewards points on flights and prepaid hotels booked on amextravel.com plus enjoy access to the American Express Global Lounge Collection. And with a welcome offer of 150,000 points, your business can soar to all new heights. Terms apply. Learn more@americanexpress.com Amex Business Platinum, built for business by American Express.
- [11:44]
Stephen Overlea
You know, the Supreme Court, which we mentioned here, they ruled on Friday upholding this ban. Was anything about that decision surprising to you? I think a lot of folks kind of expected they would go this way. But I wonder if anything stood out to you in their decision.
- [11:58]
Alan Rosenstein
I think it was broadly what we expected. I mean, I think it's notable that it was a 9, 0 decision. Even I, who have been pretty confident about the constitutionality of this law throughout the whole litigation process, thought that TikTok might pick up a vote or two. But you know, between the D.C. circuit, which ruled 30 against TikTok and the Supreme Court, you know, TikTok is over 12 with federal judges, which is, you know, at the end of the day a loss is a loss, but that margin does not feel good in terms of the decision itself. You know, I think that the Supreme Court, in part because they had such an accelerated, they had such a short time to hear the case and write up an opinion, and also because this is a legitimately hard case, this is not a trivial case, they wrote the absolute narrowest opinion possible. And basically, in a nutshell, what they said was, look, there are two justifications for the law. One is data privacy, one is content manipulation. The content of manipulation justification raises some really tricky First Amendment issues because it's about content in a sense, but the data privacy is not really a first. It's barely a First Amendment issue at all. So we're just going to uphold the law and the data privacy issue and really hammer home that that's the ground we're doing it on. And that here TikTok is a potentially Chinese controlled entity. So, you know, I think again, the setup of TikTok or the users or Trump, that doesn't matter, right? At the end of the day, the Supreme Court upheld the law.
- [13:13]
Stephen Overlea
Right?
- [13:13]
Alan Rosenstein
But from the perspective of like people like me, it's a little bit of a, it's a little bit of a disappointing opinion just because it ultimately says so little and I think is not really going to, it's not giving a lot of clues as to what the Supreme Court might do across the hun of whole host of tech policy issues that are going to come in the next several years.
- [13:37]
Stephen Overlea
Well, right, but it is an interesting point because you know, there's been all this coverage of TikTok users migrating to this app called RedNote, which is also owned by Chinese company. And it sort of to me raised this question of like, regardless of what happens with TikTok, is this a situation where every time there is a Chinese owned app that people think is problematic, it's going to require Congress to pass a law and the Supreme Court to weigh in. Like, is there a route to sort of some sort of broader policy here?
- [14:06]
Alan Rosenstein
Yeah, yeah. So let me, let me say something about RedNote and then the broader question you raised. So it's true. RedNote, which is another one of these Chinese apps, a lot of migration from TikTok there. TikTok, they've been called TikTok refugees on RedNote.
- [14:18]
Stephen Overlea
Right.
- [14:19]
Alan Rosenstein
I think it's like the most popular app that's on the app stores. I will say I'm a little skeptical that this is going to go anywhere. I think right now there are a lot of people who are extremely angry and they very self consciously decided to pick a Chinese platform to kind of stick it to the man. And I get that, I respect that. But it's still a fraction of TikTok's 170 million users. And I suspect that the vast majority of those users are just normies who want to watch short form video content. And they are not going to move to RedNote. They're going to move to Instagram Reels or YouTube shorts, because these are American companies, they have giant user bases. The content is already there, the algorithms are pretty good. So I suspect that when we look back a month or Two from now, RedNote is going to be kind of a flash in the pan. But I think your broader question is really important because there's no reason to think that a platform like TikTok or RedNote or something else couldn't pop up in the future.
- [15:05]
Stephen Overlea
Right.
- [15:06]
Alan Rosenstein
Disrupt the existing platforms in the way that TikTok came and disrupted the existing platforms when it burst on the scene a few years ago. Now the law actually has a provision to deal with this. What we've been talking about so far has been the TikTok part of the law. But 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. So if rednote grows enough, for example, in the United States, and I forget what the exact threshold is, but it's like a million or a few million users. It's not that high of a threshold. Actually. The President, President Trump could say, actually, I think RedNote now poses a kind of similar national security concern and then that would trigger the same kind of thing.
- [15:49]
Stephen Overlea
Got it.
- [15:50]
Alan Rosenstein
What I suspect is the reason I actually don't think this is going to be a big problem going forward is when TikTok came onto the scene, there was no regulatory mechanism to deal with Chinese controlled applications. And so it grew very, very quickly. And then by the time Congress got around to it or the political process got around to it, it had already 100, 150, 170 million users. Now that there is a regulatory process in place for this, I think that will probably disincentivize people from going to the hot new Chinese app. That problem is over, essentially.
- [16:21]
Stephen Overlea
You know, this is obviously inauguration day in addition to being sort of TikTok banned day. And TikTok CEO Sho Chiu is expected to be at the inauguration sitting behind Trump. You know, he's been around inauguration activities this weekend now that TikTok has lost 9, 0 at the Supreme Court. I mean, for the company. Is Trump like their last hope here for a save?
- [16:47]
Alan Rosenstein
Well, in a sense, but really, Xi Jinping is their last hope to first.
- [16:52]
Stephen Overlea
Why so?
- [16:53]
Alan Rosenstein
Yeah, so the problem with the divestment has never been finding a buyer. TikTok is obviously very expensive property, but, you know, there's a lot of money sloshing in the world. Sure, they could have found a buyer if they needed to. The problem is the seller. And the seller here nominally is ByteDance, but everyone understands that it's the Chinese government. If the Chinese government, the Chinese Communist Party, the Chinese leader, Xi Jinping does not want bytedance to sell. Bytedance will not sell.
- [17:18]
Stephen Overlea
Right.
- [17:18]
Alan Rosenstein
If he does want bytedance to sell, they will sell tomorrow. Right. And finding a buyer will not be a problem. What worries me, right? And we'll just have to see what happens the next couple of weeks and couple of months is if Trump decides that he wants to make a sale of TikTok, a centerpiece of his diplomacy with Xi Jinping. Although he's a China hawk, he likes foreign dictators. He has expressed his admiration and personal affection for Xi Jinping. He likes making deals. And he cannot, like, psychologically separate in his mind what's in his personal interest from what's in the national security interest of the United States. And 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.
- [18:06]
Stephen Overlea
Right.
- [18:07]
Alan Rosenstein
So what is to stop Trump rather from, I don't know, selling out the Uyghurs or selling out Taiwan. Right. In a negotiation with Xi Jinping. Right. Xi Jinping is in a fabulous negotiating position because he has someone sitting across from him, Donald Trump, who is very motivated probably to make a deal happen and doesn't really care about the Uyghurs. Doesn't really care about Taiwan, so that's what keeps me up at night. I understand. You know, it's easy for me to say I'm not a TikTok user. I'm not a content creator. I don't make my living on TikTok. But I think we can all agree that in the priority of national security interests of the United States, whether TikTok continues to operate, it's like not a top 10 issue. And that's what makes me really, really nervous.
- [18:47]
Stephen Overlea
Right. Well, it's, you know, it seems like it's going to be a top 10 issue for Trump now taking office, so we'll see what he does with it. Alan, appreciate you being back here on Politico Tech.
- [18:56]
Alan Rosenstein
Thanks for having me.
- [19:01]
Stephen Overlea
That's all for today's Politico Tech. If you enjoy Politico Tech, please subscribe. And for more tech news, subscribe to our newsletters, Digital Future Daily and Morning Tech. Our managing producer is Annie Reiss. Our producer is Afra Abdullah. I'm Stephen Overle. See you back here tomorrow.