“Across Washington, China hawks are trying to draw a hard line against any plan that would let ByteDance maintain a degree of control of the company or insight into its underlying technology, both of which are banned by the bipartisan 2024 law passed by Congress.
But Trump is already violating that law by allowing the app to stay online. And if his promised deal goes through, Congress has almost no leverage to stop it: The law leaves final approval in the president’s hands, and lawmakers can’t take him to court even if he violates its clear meaning.
“Congress does not have standing to sue,” said Alan Rozenshtein, a professor at the University of Minnesota Law School. He said a lawmaker can typically only file suit if they’re personally harmed by a violation.
An illegal TikTok-Oracle deal blessed by Trump would immediately join a host of White House actions that flout settled law. The Trump administration is being sued for breaking laws around deportations, civil-service protections, federal spending rules, government data-sharing and more — all of which are now playing out in federal courts across the country.
When it comes to TikTok, however, even the courts offer little recourse to enforce the 2024 law, which the Supreme Court unanimously affirmed in January.
The law requires a “qualified divestiture” of TikTok — an arrangement where ByteDance gives up all control of both the company and the powerful algorithm that runs TikTok’s video-sharing service. It can retain at most a 20 percent financial stake in the company.
The Oracle deal under discussion — a modification of a prior arrangement between TikTok and Oracle, where U.S. user data was stored on Oracle-run servers while ByteDance retained a role in TikTok’s operations — would likely flunk one or more of those tests. But it’s Trump who is ultimately empowered to declare an agreement acceptable.
“The president gets to decide what constitutes a qualified divestiture,” said Michael Sobolik, a former national security staffer for Sen. Ted Cruz (R-Texas) and senior fellow at the conservative Hudson Institute. “That is completely up to him, even though the contours of what needs to happen in a divestiture are spelled out in the law.”
China hawks on Capitol Hill are rattling their sabers at Trump, warning against any deal that keeps ByteDance in the room.
“The law is clear,” Rep. John Moolenaar (R-Mich.), chair of the House Select Committee on China, wrote on Tuesday. “Any deal must eliminate Chinese influence and control over the app to safeguard our interests.”
But Moolenaar and other lawmakers have few options to stop Trump once he decides to proceed. And lawyers say Washington’s sense of powerlessness is compounded by the fact that the White House is already ignoring the TikTok law.”
“The Chinese government and Chinese companies do not enjoy the benefits of free speech guaranteed by our Constitution. But American citizens still do, including the often forgotten right to hear and receive information, even from the most suspicious sources. In his seemingly reluctant and “admittedly tentative” concurring opinion in TikTok v. Garland, Justice Neil Gorsuch alluded to the principle and its history while acknowledging the unique technical and security challenges presented by TikTok: “Speaking with and in favor of a foreign adversary is one thing. Allowing a foreign adversary to spy on Americans is another.””
“President Donald Trump signed an executive order Monday to delay enforcement of a TikTok ban by 75 days, hours after his swearing in ceremony and a day after a federal ban took effect.
His order directs his attorney general to not levy fines against app stores and service providers that continue helping TikTok stay up.”
“The law defined the term “controlled by a foreign adversary” to include not only companies owned wholly by Chinese entities but also one in which a citizen of an adversarial nation “directly or indirectly own[s] at least a 20 percent stake.” In other words, even if the overwhelming majority of a company’s shares were owned by Americans, it could be banned or forced to divest so long as the remaining shares were held by Chinese, Russian, or Iranian citizens.
In order to continue operating within the United States, the only recourse would be to sell TikTok to an American company by January 19, 2025—Joe Biden’s last full day in office.
TikTok and ByteDance sued, asking courts to declare the law unconstitutional. “For the first time in history, Congress has enacted a law that subjects a single, named speech platform to a permanent, nationwide ban,” the lawsuit argued. Lawmakers’ “speculative concerns fall far short of what is required when First Amendment rights are at stake.”
The plaintiffs claimed that the law’s restrictions were subject to strict scrutiny—the highest standard of review that a court can apply to an action, reserved for potential burdens on fundamental constitutional rights. “The Act represents a content- and viewpoint-based restriction on protected speech,” the lawsuit said, and the law’s divest-or-be-banned provision constitutes “an unlawful prior restraint.”
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“a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled against the plaintiffs, finding “the Government’s justifications are compelling” and that it did not violate the First Amendment for the state to single out one company for disfavored treatment.
“We conclude the portions of the Act the petitioners have standing to challenge, that is the provisions concerning TikTok and its related entities, survive constitutional scrutiny,” Senior Judge Douglas Ginsburg wrote for the majority. “We therefore deny the petitions.”
Ginsburg notes that while the law does require “heightened scrutiny,” it satisfies the requirements of strict scrutiny because of how narrowly tailored it was: “The Act was the culmination of extensive, bipartisan action by the Congress and by successive presidents. It was carefully crafted to deal only with control by a foreign adversary, and it was part of a broader effort to counter a well-substantiated national security threat posed by the PRC.”
In fact, that “national security threat” was not very “well-substantiated” at all—but the court didn’t seem to mind.
“TikTok contends the Government’s content-manipulation rationale is speculative and based upon factual errors,” Ginsburg wrote, referring to lawmakers’ concerns that Beijing could manipulate content on TikTok to promote Chinese propaganda. “TikTok fails, however, to grapple fully with the Government’s submissions. On the one hand, the Government acknowledges that it lacks specific intelligence that shows the PRC has in the past or is now coercing TikTok into manipulating content in the United States.” But “the Government is aware ‘that ByteDance and TikTok Global have taken action in response to PRC demands to censor content outside of China'” and “‘have a demonstrated history of manipulating the content on their platforms, including at the direction of the PRC.'”
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“It may be that the PRC has not yet done so in the United States or, as the Government suggests, the Government’s lack of evidence to that effect may simply reflect limitations on its ability to monitor TikTok,” Ginsburg shrugs. “In any event, the Government reasonably predicts that TikTok ‘would try to comply if the PRC asked for specific actions to be taken to manipulate content for censorship, propaganda, or other malign purposes’ in the United States.”
The court’s decision is yet another instance where vague claims of “national security” trump individuals’ First Amendment rights. Claiming that Congress has the authority to force a company to sell one of its holdings—not through an established power like antitrust, but simply because they don’t like how it could be used in the future—is not only a weak justification; it is a plainly unconstitutional one.”
“The constitutional law here appears straightforward: Congress can’t outright ban TikTok or any social media platform unless it can prove that it poses legitimate and serious privacy and national security concerns that can’t be addressed by any other means. The bar for such a justification is necessarily very high in order to protect Americans’ First Amendment rights, Krishnan said.”
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“members of Congress have not provided concrete proof for their claims about Chinese digital espionage and seem to have little interest in offering any transparency: Before the committee voted to advance the bill Thursday, lawmakers had a closed-door classified briefing on national security concerns associated with TikTok.”
“The latest wave of fearmongering about TikTok involves a study purportedly showing that the app suppresses content unflattering to China. The study attracted a lot of coverage in the American media, with some declaring it all the more reason to ban the video-sharing app.”
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“But there are serious flaws in the study design that undermine its conclusions and any panicky takeaways from them.
In the study, the Network Contagion Research Institute (NCRI) compared the use of specific hashtags on Instagram (owned by the U.S. company Meta) and on TikTok (owned by the Chinese company ByteDance). The analysis included hashtags related both to general subjects and to “China sensitive topics” such as Uyghurs, Tibet, and Tiananmen Square. “While ratios for non-sensitive topics (e.g., general political and pop-culture) generally followed user ratios (~2:1), ratios for topics sensitive to the Chinese Government were much higher (>10:1),” states the report, titled “A Tik-Tok-ing Timebomb: How TikTok’s Global Platform Anomalies Align with the Chinese Communist Party’s Geostrategic Objectives.”
The study concludes that there is “a strong possibility that TikTok systematically promotes or demotes content on the basis of whether it is aligned with or opposed to the interests of the Chinese Government.”
There are ample reasons to be skeptical of this conclusion. Paul Matzko pointed out some of these in a recent Cato Institute blog post, identifying “two remarkably basic errors that call into question the fundamental utility of the report.””
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“the researchers fail to account for differences in how long the two social networks in question have been around. Instagram launched nearly 7 years before TikTok’s international launch (and nearly 6 years before TikTok existed at all) and introduced hashtags a few months thereafter (in January 2011). Yet the researchers’ data collection process does not seem to account for the different launch dates, nor does their report even mention this disparity. (Reason reached out to the study authors last week to ask about this but has not received a response.)
The researchers also fail to account for the fact that Instagram and TikTok users are not identical. This leads them “to miss the potential for generational cohort effects,” suggested Matzko. “In short, the median user of Instagram is older than the median user of TikTok. Compare the largest segment of users by age on each platform: 25% of TikTok users in the US are ages 10–19, while 27.4% of Instagram users are 25–34.”
It’s easy to imagine how differing launch dates and typical-user ages could lead to differences in content prevalence, with no nefarious meddling by the Chinese government or algorithmic fiddling by Bytedance needed.”
“The platform-utilities approach, by contrast, suggests Congress take a different path. In banking, radio, airlines, maritime shipping and power, federal regulators had to give approval, via a license or charter, to a company before it could operate one of these utility-services in the United States. That approval was conditional on meeting congressionally set regulatory standards that apply across the whole sector. Clear rules on restricting foreign influence reduce the need to come up with complicated compliance plans or monitoring programs. They create a level playing field for businesses, so firms do not have to worry about being singled out for regulation.
For generations, this approach traveled alongside antitrust law. Antitrust generally focuses on competitive markets; the platform-utilities approach recognizes that some markets might not be very competitive, and preventing the abuse of corporate power, therefore, requires regulation. Indeed, both approaches emerged at the federal level at almost the same time. The Sherman Antitrust Act was passed in 1890, only a few years after the Interstate Commerce Act of 1887, which took a platform-utilities approach to regulating the railroads.
In the late 20th century, both fields went through revolutions. Antitrust became dominated by an approach that focused on consumer welfare and efficiency. Deregulatory advocates passed laws abandoning the platform-utilities approach in rail, airlines, maritime shipping, telecommunications and banking. Today, antitrust is in the midst of a renaissance, with policymakers on left and right supporting more aggressive enforcement of competition laws. The platform-utilities approach deserves the same reinvigoration, because it offers useful strategies for addressing current policy challenges.
If lawmakers want to take a lesson from the long American tradition of regulated capitalism, they should advance comprehensive legislation to regulate tech platforms more like public utilities. Such legislation should include restrictions on foreign ownership and control, which could apply to all tech platforms from adversarial countries. Comprehensive legislation should also include sectoral standards that apply to U.S. firms as well — standards not just on data collection, surveillance and privacy, but also against anti-competitive behavior.
Just like radio a century ago, tech platforms are a modern utility, essential for commerce and communication. We should start treating them that way.”
“Investigative journalists have tried hard to find evidence that TikTok is leaking data to Chinese authorities, but to no avail.
“I haven’t found any evidence” of “the company handing over data to Chinese authorities, or security risks associated with its connection to the Chinese state,” writes Chris Stokel-Walker—who has done ample critical reporting about the company—at Buzzfeed this week:
I’ve been trying for years to find any links to the Chinese state. I’ve spoken to scores of TikTok employees, past and present, in pursuit of such a connection. But I haven’t discovered it….””
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“TikTok adamantly denies allegations about data sharing with the Chinese government. “TikTok has never shared, or received a request to share, U.S. user data with the Chinese government,” said its CEO in prepared testimony released ahead of today’s House hearing. “Nor would TikTok honor such a request if one were ever made.”
“Let me state this unequivocally: ByteDance is not an agent of China or any other country,” the testimony continues. “Bans are only appropriate when there are no alternatives. But we do have an alternative.”
The company has been cooperating with U.S. regulators to develop protocols around user data that will help mollify security and privacy concerns. “TikTok has formed a special-purpose subsidiary, TikTok U.S. Data Security (USDS), that currently has nearly 1,500 full-time employees and contracted with Oracle to store TikTok’s U.S. user data,” notes Reuters. According to Chew’s testimony, “Oracle has already begun inspecting TikTok’s source code and will have unprecedented access to the related algorithms and data models.””