TikTok Facing U.S. Ban on January 19 After Supreme Court Upholds Law

[trellus]

You can challenge anything, but the law is written in plain language. Given there is no definition of "qualified divestiture," and the fact that it's up the President's determination, there's no real challenge in court.

Blame the original law for being so ambiguous.

What competitor is going to challenge this? The ones who donated $1M to his inauguration fund? They know Trump can do anything to make their lives very difficult. So who's going to poke the bear?

There is a definition of "qualified divesture" in the legislation itself, and no, it is not soley up to the President's determination as defined in the statute itself, because it clearly qualifies the president's determination, and stipulates what it must determine as a matter of fact:
<<NOTE: President. Determinations.>> The term ``qualified
divestiture'' means a divestiture or similar transaction that--
(A) the President determines, through an interagency
process, would result in the relevant foreign adversary
controlled application no longer being controlled by a
foreign adversary; and
(B) the President determines, through an interagency
process, precludes the establishment or maintenance of
any operational relationship between the United States
operations of the relevant foreign adversary controlled
application and any formerly affiliated entities that
are controlled by a foreign adversary, including any
cooperation with respect to the operation of a content
recommendation algorithm or an agreement with respect to
data sharing.

The statute itself even gives explicit parameters for judicial review -- although it is possible even that could be challenged, but just the fact it gives parameters for judicial review of, among another things, any "determination" made -- which would include the Presidents' determinations "through an interagency process":

SEC. 3. <<NOTE: 15 USC 9901 note.>> JUDICIAL REVIEW.

(a) Right of Action.--A petition for review challenging this
division or any action, finding, or determination under this division

[[Page 138 STAT. 960]]

may be filed only in the United States Court of Appeals for the District
of Columbia Circuit.
(b) Exclusive Jurisdiction.--The United States Court of Appeals for
the District of Columbia Circuit shall have exclusive jurisdiction over
any challenge to this division or any action, finding, or determination
under this division.
(c) Statute of Limitations.-- <<NOTE: Deadlines.>> A challenge may
only be brought--
(1) in the case of a challenge to this division, not later
than 165 days after the date of the enactment of this division;
and
(2) in the case of a challenge to any action, finding, or
determination under this division, not later than 90 days after
the date of such action, finding, or determination.

 

[trellus]

"President determines" through an "interagency process."

It's his regime. His agency. He handpicked loyalists.

What did Trump's pick for Attorney General say at the hearing? She basically refused to commit to enforcing the ban.

If Apple and Google take it off of their App stores, it is effectively dead and doesn't matter what the AG does or does not do to enforce the ban.

And they may not simply accept a less-than-clear legal status if Trump and his DOJ have acted in a way that leaves the legality of their actions questionable, choosing instead to protect themselves until there is more clarity.

So, again, the simplistic notion that Trump can simply unilaterally make a determination and everything falls into place rapidly for TikTok is just not realistic.

Trump is not going to be president forever, so him choosing not to enforce a ban without Congress changing the law may prove too risky for companies looking to stay out of legal trouble in a future administration that may view it differently.

 

[xander49x]

it's time for me to take everyone who voted to ban TikTok to Court, it is all about suppression and control. it's time to boycott Facebook, Twitter, instagram, they are worse than TikTok.

 

[dannyyankou]

Well, aside from the part where the government merely claimed, but didn't actually prove, that it was "filled with spies." Their argument was "trust me bro, there may be a bunch in there" and we all know how the whole WMD yellow cake thing turned out.

Bytedance admitted to some of the things they were accused of. Very crucial detail.

 

[JPack]

There is a definition of "qualified divesture" in the legislation itself, and no, it is not soley up to the President's determination as defined in the statute itself, because it clearly qualifies the president's determination, and stipulates what it must determine as a matter of fact:
<<NOTE: President. Determinations.>> The term ``qualified
divestiture'' means a divestiture or similar transaction that--
(A) the President determines, through an interagency
process, would result in the relevant foreign adversary
controlled application no longer being controlled by a
foreign adversary; and
(B) the President determines, through an interagency
process, precludes the establishment or maintenance of
any operational relationship between the United States
operations of the relevant foreign adversary controlled
application and any formerly affiliated entities that
are controlled by a foreign adversary, including any
cooperation with respect to the operation of a content
recommendation algorithm or an agreement with respect to
data sharing.

The statute itself even gives explicit parameters for judicial review -- although it is possible even that could be challenged, but just the fact it gives parameters for judicial review of, among another things, any "determination" made -- which would include the Presidents' determinations "through an interagency process":

SEC. 3. <<NOTE: 15 USC 9901 note.>> JUDICIAL REVIEW.

(a) Right of Action.--A petition for review challenging this
division or any action, finding, or determination under this division

[[Page 138 STAT. 960]]

may be filed only in the United States Court of Appeals for the District
of Columbia Circuit.
(b) Exclusive Jurisdiction.--The United States Court of Appeals for
the District of Columbia Circuit shall have exclusive jurisdiction over
any challenge to this division or any action, finding, or determination
under this division.
(c) Statute of Limitations.-- <<NOTE: Deadlines.>> A challenge may
only be brought--
(1) in the case of a challenge to this division, not later
than 165 days after the date of the enactment of this division;
and
(2) in the case of a challenge to any action, finding, or
determination under this division, not later than 90 days after
the date of such action, finding, or determination.

Technically, yes. Practically, no.

What is an "interagency process"? White House checks with with Commerce Dept. and National Economic Council. That's between two agencies. Or simply an agency that's cooked up in the next few days with Musk and Chew.

Again, the key term is "President determines." It doesn't say the process has to meet a certain level of standard. He determines.

 

[JPack]

If Apple and Google take it off of their App stores, it is effectively dead and doesn't matter what the AG does or does not do to enforce the ban.

And they may not simply accept a less-than-clear legal status if Trump and his DOJ have acted in a way that leaves the legality of their actions questionable, choosing instead to protect themselves until there is more clarity.

So, again, the simplistic notion that Trump can simply unilaterally make a determination and everything falls into place rapidly for TikTok is just not realistic.

Trump is not going to be president forever, so him choosing not to enforce a ban without Congress changing the law may prove too risky for companies looking to stay out of legal trouble in a future administration that may view it differently.

"President determines" a "qualified divestiture" has taken place. The law makes it clear.

Point is, Trump has so many yes men/women, he will have no problem pushing this through an "interagency process," if he so wishes.

Once a "qualified divestiture" has taken place, does the law still have any bite? Can it go back to a state of adversarial investment again? That's for the next President to determine.

 

[trellus]

Technically, yes. Practically, no.

What is an "interagency process"? White House checks with with Commerce Dept. and National Economic Council. That's between two agencies. Or simply an agency that's cooked up in the next few days with Musk and Chew.

Again, the key term is "President determines." It doesn't say the process has to meet a certain level of standard. He determines.

Actually, it does explicitly lay out what he must determine -- it's right there in the text. It's not an unqualified, open-ended determination.

Granted, the language is broad enough that it's a judgement call, but the statute itself clearly spells out the terms for judicial review of any determination in this context, including the President's determination of "qualified divestiture."

And that "interagency process" could and almost certainly would be scrutinized by any bringing a legal challenge, so that I am certain they would demand documentation of evidence supporting the determination as required by the statute is produced and scrutinized.

This is precisely the purpose of judicial review and of accommodating judicial review of all determinations, including this one.

But again, in any case, if it smells funny, you can be sure the legal departments at Apple and Alphabet aren't going to just blissfully accept the Trump administration's word that they needn't worry about those $5,000 PER PERSON hefty penalties that becomes gargantuan when multiplied out by millions if they have the app available for download on their app stores and millions more download it -- and remember, that would include updates to the app for the huge already-existing user base for TikTok.

They recognize that administrations change and they understand statutes of limitation.

 

[TigerNike23]

This is the most disturbing aspect of this entire affair:

In a statement to CNN, Trump said "It ultimately goes up to me, so you're going to see what I'm going to do."​

​

He went on to say "Congress has given me the decision, so I'll be making the decision."​

​

None of that is true and all of it represents a disturbing descent into autocracy.

As to the ban itself… shouldn't other China-linked apps be banned as well? For example, the to-do app, Tick Tick, would have far more revealing private information on its servers than Tik-Tok does. It has very strict stated standards to protect user data, but is reputed to be linked to a Chinese entity that would be subject to Chinese government orders. Tick Tick is probably not a good example — no doubt, there are directly Chinese-owned apps that the ban should apply to.

But, as others have noted here and around the net, the fundamental problem is surveillance capitalism, with major corporations in the U.S. and around the world scarfing up people's private, personal data, compiling it into dossiers, and selling it on the open market.

Tracking people's browsing, mining their private data, and selling it should be illegal — full stop. Any app or website that does it should be shut down and, if the company behind it persists, it should be taken down, too.

If we’re honest… SHEIN, Temu and AliExpress are far more dangerous than TikTok because they have financial information, names, and addresses of users.

I’ve long thought those cheapo apps were data mines that just happen to give you junk in return.

 

[farmboy]

Well, aside from the part where the government merely claimed, but didn't actually prove, that it was "filled with spies." Their argument was "trust me bro, there may be a bunch in there" and we all know how the whole WMD yellow cake thing turned out.

The government doesn't have to "prove" intelligence findings to the public. The DOJ did provide evidence (intelligence material) to the Court, but they chose not to consider it because it wasn't germane to the petitioner's challenge that the government was improperly regulating free speech. This would have been the same evidence provided to the appropriate committees in Congress who structured the law in the first place.

The "yellow cake" claim was made by Colin Powell to the UN Security Council based on "solid sources", not to Congress and was not the subject of a law. Besides, if you really think the CCP is NOT using the intelligence gathered from TikTok, which is required to provide to them, then you are naïve.

 

[contacos]

It's just the app that is banned until the Chinese no longer own it. For people that have the app, it will not be updated and should work for awhile. Otherwise, people can still access it through a browser if they really want to.

This was an unanimous decision by the Supreme Court and the next administration can't reverse the decision through an executive decision since this is a law that was passed in Congress.

Apparently they could but TikTok is apparently going to block access in the US and will redirect them to a one pager as to why basically being like "blame your government"

 

[trellus]

"President determines" a "qualified divestiture" has taken place. The law makes it clear.

Point is, Trump has so many yes men/women, he will have no problem pushing this through an "interagency process," if he so wishes.

Once a "qualified divestiture" has taken place, does the law still have any bite? Can it go back to a state of adversarial investment again? That's for the next President to determine.

Remember, this passed with overwhelming support in the Congress, bipartisan support in fact (what's funny is that Trump himself tried to ban TikTok in his first administration before reversing course now) -- so, if Trump is too sloppy, there is a possibility of a veto-proof majority passing something stronger that strips a president's authority to make this determination in the first place.

I don't think that's likely, but it's not completely out of the realm of possibility, and I think where we finally end up is with a compromise in which Trump's determination is based on a real divesture, perhaps something akin to what Biden was considering, called "Project Texas", in which Oracle hosted and controlled all the U.S. TikTok data and operated it out of Austin, and the feds having a kill switch if they felt there were any violations by TikTok notwithstanding.

I guess we will find out soon enough -- but I would be surprised if anything definitive happens in the next few days. I think it's going to take a little longer for this to sort out.

 

[Timpetus]

This isn't actually about TikTok. It's about the government giving themselves the tools and precedent needed to apply this law to others, too. It includes provisions for targeting anyone who is "influenced or controlled" by foreign persons, companies, or governments. Just like during the Cold War, denial will be evidence of your guilt. It's yet another Patriot Act, and it's coming for free speech and your right to listen to whomever you wish.

 

[CapitalIdea]

I was simply reflecting the intellectual rigor of your post.

Curious statement, since you called me “comrade” and implied I’m somehow communist or something adjacent when my handle is literally a celebration of capitalism. Quite the rigorous discernment yourself!

 

[JoeShades]

This isn't actually about TikTok. It's about the government giving themselves the tools and precedent needed to apply this law to others, too. It includes provisions for targeting anyone who is "influenced or controlled" by foreign persons, companies, or governments. Just like during the Cold War, denial will be evidence of your guilt. It's yet another Patriot Act, and it's coming for free speech and your right to listen to whomever you wish.

This is a misrepresentation of the law

 

[drrich2]

The count of 3bn+ monthly Facebook users demonstrates that the majority of people globally simply don't care about privacy.

Privacy is too broad a term, and claiming most people don't care about it is overly broad.

There are some forms of information that just don't matter that much to some people. Some tracking which leads to the ad.s I'm subjected to at least being relevant (and sparing me having to watch some woman try to sell me a menstrual product), and non-personally identifying data joined with others for aggregate data, I'm okay with.

I don't believe for a second that TikTok is magically independent of the Chinese government!

U.S. social media platforms aren't even independent of the U.S. government.

A Guide to Understanding the Hoax of the Century​

Thirteen ways of looking at disinformation​

BY
JACOB SIEGEL
MARCH 28, 2023

If this is how the United States government agencies view the world and social media, no wonder they objected to TikTok. Takes one to know one.

If the objection was ByteDance being owned by a company under a 'foreign adversary' (publicly calling China an enemy doesn't seem like good diplomacy), why must the divestiture be to a U.S-based company? Why not one in France, German, the Netherlands, etc...?

Who is supposed to acquire TikTok, and do you think it's make people happy?

1.) Meta - FaceBook acquiring Instagram already upset some. You want Zuckerberg as Lord of TikTok, too? Or will people cry 'Monopoly!' or some such?

2.) Elon Musk - hey, if the Left was worried about propaganda through TikTok, won't this be a fun ride?

3.) Dept. of Justice is already trying to force Google to divest itself of Chrome; that's chicken feed compared to gaining TikTok. And they already own YouTube!

4.) Microsoft - remember way back when they seemed determined to dominate in most any big, profitable or platform-based tech. domain? Operating systems, web browsers, office suites... Now they've got Xbox. So, wanna see them own TikTok, too?

 

[JoeShades]

why must the divestiture be to a U.S-based company? Why not one in France, German, the Netherlands, etc...?

Pretty sure it can be sold to another country

 

[jonblatho]

I don't use TikTok, or X (or ever used twitter) or threads, or mastodon, or blue sky...so don't really care.

What I do care about is congress saying it's unsafe with a "trust me bro" instead of presenting, for everyone to see, exactly what the specific issues are, in detail.

That's all.

That always bothered me too. So much of the claimed specific reasoning for the ban — which allegedly sold the ban to many members of Congress who had been on the fence — was not just not disclosed to the public but was classified (and remains so).

One thing I’m not about to do is take a politician — even the ones I vote for — at their word. If it’s so bad, then let’s all see the evidence. Absent that, I can only assume it’s brinksmanship based on nonsense and/or monied interests — the one constant factor in U.S. domestic and foreign affairs.

 

[ProbablyDylan]

Who is supposed to acquire TikTok, and do you think it's make people happy?

I think another issue would be who could afford to buy it?

 

[drrich2]

Pretty sure it can be sold to another country

Right, I doubt it can. I meant a company in another country (not considered an 'adversary'), and I fixed the original post.

I think another issue would be who could afford to buy it?

Entities some people would object to owning it. Meta (yet another major property with great engaging with Americans under Mark Zuckerberg), X (and the concern was the potential for Chinese propaganda and political conflict of interest?), Google (owns YouTube and the DOJ is trying to force them to divest of the Chrome browser), Microsoft (which has faced anti-trust action in the past and is already a BIG player in a number of spheres), so...yeah.

 

[ProbablyDylan]

Entities some people would object to owning it. Meta (yet another major property with great engaging with Americans under Mark Zuckerberg), X (and the concern was the potential for Chinese propaganda and political conflict of interest?), Google (owns YouTube and the DOJ is trying to force them to divest of the Chrome browser), Microsoft (which has faced anti-trust action in the past and is already a BIG player in a number of spheres), so...yeah.

All of these big players can already be counted out - the antitrust proceedings would follow immediately. But who else has a war chest as full as Google, Meta, and Musk? I don't see Tim going for it.

Though, that would be cosmically funny. Dark horse Apple scooping up TikTok and making it iOS exclusive.

 

[drrich2]

But who else has a war chest as full as Google, Meta, and Musk?

And that would want such a thing. I don't see how they could afford it without a major markdown, but if the Fox News people/backers bought it, that would be a hoot just to watch the other side freak out.

Anybody that buys something like this is going to monetize it, so they're gonna data-harvest and sell to advertisers. And they're going to market their product, so algorithms will serve people up more of what engages them, which some other people are going to claim is addictive (actually, routinely getting what you want probably can be!). And they're going to have the option to spin the message (like the New York Times and other major news outlets do). If you doubt me, Google 'When The New York Times Lost Its Way' (The Economist - sign up for a free account online), read that and you will see.

Compared to how American companies are prone to use such things, ByteDance and China might not look so bad.

 

[Jetscreamer]

Will Congress ban Chinese takeout, Chinese laundry, and Ancient Chinese secrets next? I hope not. What if they come after Marvel Rivals too when they realize NetEase is a Chinese developer based in China?

 

[LogicalApex]

For the longest time, I had issues with a TikTok ban from a first amendment perspective. But I thought of an analogy that kinda made me change my mind.

Let’s say there was a bar in the United States, and a lot of people hang out at this bar with friends and socialize and have a good time. But then, you find out this bar is owned and operated by China. On top of that, you find out this bar is filled with Chinese spies who are eavesdropping on you and collecting your information.

The US government would have a right to shut this bar down. Right?

Good Analogy.

I am always confused by the First Amendment arguments that come up on these contexts. It is a bizarre stretch to say "people say things on this platform so since people say things we can't be regulated!"... Taken to an extreme like that nothing can be regulated nor can the government stop anything.

 

[transmaster]

Where TikTok is banned. Please note TikTok is banned in China.

 

[WarmWinterHat]

Where TikTok is banned. Please note TikTok is banned in China.

View attachment 2473338

I don't care what is going on in China. This is about what our Congress is doing here.

Since when are we trying to be like China?