The employees of TikTok are being questioned

The Investigation of China’s TikTok App: Can Congress Explain What It Is Meant to Tell Us About Its Implications?

The Department of Homeland Security, which oversees the Customs and Border Protection agency, has been investigating ByteDance for more than a year. The US should ban TikTok if ByteDance fails to sell the app. Legislation that would ban TikTok if ByteDance does not remove it within a year was signed by the President last week.

While ByteDance might be able to escape the export controls with no software, even that option is likely to be limited. Even though a homegrown success story could stand to make billions with the sale of the app with the algorithm in tack, they say the Chinese government is not really motivated by money in that way.

The missing piece many members of the public have waited for is clear evidence of the kinds of risks to US TikTok users that lawmakers have seen in their classified briefings, especially since those briefings seem to have convinced them to vote for the bill. The public is unaware of the details of national security risks that the intelligence community believes are generated by the app.

“We’ve remained publicly unaware or uneducated on what exactly the national security implications are in this case,” said Gautam Hans, associate director of the First Amendment Clinic at Cornell Law School. “That does not mean that I don’t think that such concerns exist. We are taking it on as an article of faith. That said, Hans added, “courts are very reluctant to end up micromanaging or second guessing the decisions of the political branches when it comes to national security because of institutional competence reasons, the belief that judges are really not the best people to be making calls about national security.”

But, he acknowledges, that can also create a perverse incentive where “the government can constantly scream national security, national security, and therefore just prevail without any meaningful review.”

The DC Circuit Court is a Step Towards a New First Amendment: The Legal Challenges That lie ahead for TikTok — in both the US and China

The DC Circuit Court has exclusive jurisdiction over many aspects of federal administrative law, such as immigration law and some tax law. The federal government’s challenges are nothing new in this circuit. “This is a court that’s going to take the issue seriously and apply Supreme Court precedent in a serious way,” said Matt Schettenhelm, senior litigation analyst at Bloomberg Intelligence covering tech and telecom. “You won’t have the situation where maybe a judge could get this case and try to make a name for himself by writing a bold First Amendment decision, for example, that pushes the limits.”

It has a weak point, as it must show that Congress explored alternatives that were less restrictive in their impact on speech. “Often, the DC Circuit is asking, ‘Did the federal government or the agency take a hard look at the evidence in the record and use it properly?’” Schettenhelm said.

The courts tend to be more sympathetic to congressional actions related to national security than the Trump administration is being made to do by executive order.

There are also longstanding rules about foreign ownership of broadcast television and radio stations — rules the government may try to lean on to support the idea that preventing a foreign power from owning influential media products can overcome a First Amendment challenge.

He thinks the company will argue that the bill is a bill of attainder, or a law that violates the Constitution by singling out an individual or company for punishment without due process. He thinks that argument will fail, pointing to a DC Circuit Court decision which upheld Congress’s decision to codify a prohibition on Russia-based cybersecurity company Kaspersky Lab’s products in government information systems due to concerns that the Russian government might gain access to US systems. The circuit court agreed with a lower court that it was not a bill of attainder since “the prohibition is not a punishment but a prophylaxis necessary to protect federal computer systems from Russian cyber-threats.”

Source: The legal challenges that lie ahead for TikTok — in both the US and China

The China-US Connection: The ByteDance Asymptotic Analysis of China, Russia, and China in the Post-Washington War

ByteDance likely won’t want to consider potential buyers until it’s exhausted other options, but it might need to act sooner. Schettenhelm says that the DC Circuit Court rarely grants stays or preliminary injunctions that could stop the clock for the impending deal deadline. He believes that a case will most likely be taken up in an expedited way, which will allow the deadline to keep getting closer, as it tries to deliver a ruling by the end of the year.

The case would only go to the Supreme Court after it started at the appeals court level. The bill gives the president 90 days to see some progress in order to grant an extension of the initial nine-month period.

“I don’t believe it motivates them one bit,” says Dong. “It definitely motivates the owners and the founders of ByteDance because they’re entrepreneurs, and they would love to maximize the value of this property sale. Ultimately, the Chinese government isn’t going to be motivated just by the fact that a large amount of money is being dangled for the sale of ByteDance.

The export controls that are used to limit the flow of proprietary technology is not unique to China. China is borrowing the American model of having high degree of influence on how technology is exported and sold around the world.

China and Russia engaged in a war during this time, he pointed out. “Their continuing support of Russia in the Ukraine war, despite the fact that their economy is going into a tailspin and American investment and American trade has been restricted, certainly indicates to the rest of the world and certainly to the United States that money is not the only motivation in terms of what drives our foreign policy and our domestic policy,” Dong said.

“They’re okay with ByteDance and TikTok making a lot of profit, but not in an extreme way,” Le said. Jack Ma retreated from the public eye a few years ago after he criticized Chinese regulators, prompting scrutiny of his whereabouts, but he reappeared publicly recently. Alibaba is one of China’s most successful companies.

There’s also the question of how China might respond to the law with actions toward US businesses. Kovacevich says he’s not too concerned about retaliation against US platform businesses that back his organization, like Meta and Google. That’s because Chinese censorship laws have kept US platforms from freely operating there for years.

But companies like Apple and Tesla, which have big operations in China, could be impacted, said Le. China could act the same way if you put national security issues in the description of why you want to force a sale.

People who work in data engineering or machine learning have had their work questioned. Customs agents inquired about their access to the TikTok data. The workers have also been asked about their personal involvement with Project Texas, which is a corporate restructuring project designed to stop user data from being used by users in the US.

Tik Tok CEO has been asked the same question before. During a congressional hearing, Sen. Tom Cotton tried to get the answer to whether he was a member of the Chinese Communist Party.