TikTok backed itself into a corner
The Verge: A Court of Appeal to the High Court of China over a Trade-Off with the First Social Media Hit, TikTok
If you are at any of the tech inaugural parties this weekend, I would love to hear from you. If I respond here, I can ping you on Signal or get back to you.
If you haven’t already, don’t forget to subscribe to The Verge, which includes unlimited access to Command Line, all of our reporting, and an improved ad experience on the web.
The platform, China’s first global social media hit, isn’t for sale, and that is what TikTok executives think. China imposes export control laws that prevent TikTok’s algorithm from being sold unless Beijing approves it, something experts say is likely to happen.
Someone who worked on it recently told me that undoing Project Texas now would be a massive effort. Shutting the app down is the only option that TikTok has. It’s unclear how this would impact the experience of using TikTok outside of the US. It’s an unprecedented situation.
“There is no doubt that, for more than 170 million Americans, TikTok offers a distinctive and expansive outlet for expression, means of engagement, and source of community. But Congress has determined that divestiture is necessary to address its well-supported national security concerns regarding TikTok’s data collection practices and relationship with a foreign adversary,” the court wrote in an unsigned opinion. The challenged provisions do not conflict with the First Amendment rights of the petitioners.
The TikTok ruling could have implications that exceed the app’s corporate ownership if the justices frame the ruling as specifically TikTok-specific. Anupam Chander, a professor at Georgetown University who has been following the case closely, said the justices frame the ruling as
“There is a Bush v. Gore aspect to the decision in that it’s a one-off and not meant to have greater precedential value,” said Chander, referring to the landmark 2000 ruling. He said this will be a very important decision. “And it gives enormous power to Congress to act on data privacy questions.”
Supreme Court upholds tiktok ban, threatening app’s existence in the U.S. Attorney General Elizabeth Prelogar: “It’s up to the next administration to make sure that we implement the law”
“I mean, don’t we normally assume that the best remedy for problematic speech is counter speech?” said Gorsuch, adding that TikTok has raised the possibility of including a disclaimer on its app indicating that some content could be covertly manipulated by China.
U.S. Solicitor General Elizabeth Prelogar, representing the federal government, quickly shot that down with this analogy: “Imagine if you walked into a store and I had a sign that said one of 1 million products in this store causes cancer,” she told the court. “That is not going to put you on notice about what product is actually jeopardizing your health.”
On Friday following the Supreme Court’s ruling, Biden White House press secretary Karine Jean-Pierre said in a statement that it would be up to the incoming administration to implement the law. “Given the sheer fact of timing, this administration recognizes that actions to implement the law simply must fall to the next administration, which takes office on Monday,” she said.
Donald Trump is now in the spotlight. He filed a brief with the Supreme Court ahead of last week’s oral arguments asking that the justices delay a ruling to provide him time for his administration to cut a “negotiated solution” that would resolve the national security concerns.
If progress has been made towards a sale away from ByteDance the president can delay the ban for 90 days.
On Friday, Trump posted on his social media platform that he has not made a decision yet. “The Supreme Court decision was expected, and everyone must respect it. My decision on TikTok will be made in the not too distant future, but I must have time to review the situation. Stay on top of it!
Are We Seeing It All? Commentary on TikTok, Trump’s Warm Spot, and How We Are Trying to Stop It
She believes that when push comes to shove and the restrictions are put in, it will fundamentally change the landscape with respect to what ByteDance is willing to consider.
In discussing Trump’s TikTok views, Chew is speaking his language. After all, the incoming president is famous for keeping close tabs on his TV ratings and recently declared he had a “warm spot” for TikTok after seeing how the platform played a role in his campaign. It’s TikTok’s most public attempt to butter Trump up before he takes over the Oval Office on Monday (one day after the ban takes effect), but Chew has already visited him at Mar-a-Lago and plans to attend his inauguration, along with several other tech CEOs.
Justice Department officials issued their own confounding statements after the ruling. Attorney General Merrick Garland praised the Supreme Court for letting the Justice Department “prevent the Chinese government from weaponizing TikTok to undermine America’s national security.” But Deputy Attorney General Lisa Monaco said, “The next phase of this effort — implementing and ensuring compliance with the law after it goes into effect on January 19 — will be a process that plays out over time.”
A number of articles this week suggested the Chinese government was at least beginning to entertain the idea of selling the app, and even that they may try to persuade Musk to buy it. We haven’t heard anything from the Chinese government or ByteDance to suggest they’re taking steps toward a sale.
Do We Want to See TikTok Dark On Sunday? A Commentary on Justice Neil Gorsuch’s Conclusive Opposition to the Cut-and-Save Law
TikTok has reportedly planned to go dark on Sunday, should the law take effect, regardless of what actions other companies take. TikTok may be the only party still committed to the ban deadline.
The remedy Congress and the President chose was dramatic, stated Justice Neil Gorsuch in a concurring opinion. “Whether this law will succeed in achieving its ends, I do not know. A foreign adversary may be trying to replace a lost application with one of their own. Less dramatic and more effective solutions may emerge as threats evolve.
The opinion doesn’t understand if the Act regulates protected expression activity or conduct with an expression component. “And it directly regulates Bytedance Ltd. and TikTok only through the divestiture requirements.”
