TONYA MOSLEY, HOST:
This is FRESH AIR. I'm Tonya Mosley. TikTok is in a race against time, a last-ditch effort to save itself from being banned in the U.S. on January 19. The CEO of ByteDance - the company that owns the popular social platform - met with President-elect Donald Trump on Monday, just hours after asking the Supreme Court to take up the case and block the ban temporarily. At issue is who owns TikTok. Lawmakers say the platform is a national security risk because it gives China unfettered access to our data.
Last April, Congress passed a law that mandates TikTok either be sold to a non-Chinese company or be banned. Now, TikTok challenged the law, arguing that the ban infringes on Americans' First Amendment rights to free speech. Each month, about 170 million of us spend time on TikTok. And for those who aren't on it, yes, it's a place to watch silly pranks and dance challenges, but it's also a cultural phenomenon. According to Pew Research, 60% of adults under 30 get their news from TikTok, and millions also use it to generate income by creating content and selling products.
Our guest today, Associate Professor Alan Rozenshtein, has closely tracked TikTok's legal battles. He's been thinking about the ramifications of a ban and recently penned an article for The Atlantic asking, what if free speech actually means banning TikTok? Rozenshtein is a law professor at the University of Minnesota Law School and a senior editor and research director at Lawfare. Alan Rozenshtein, welcome to FRESH AIR.
ALAN ROZENSHTEIN: Thanks for having me.
MOSLEY: So there are so many legal moving parts to this case. Let's start with the Supreme Court. What happens now that TikTok has asked the court to intervene?
ROZENSHTEIN: So the first thing the court has to decide is what to do. TikTok has asked the court to, in the meantime, pause the law so that it doesn't go into effect on January 19. It made that application to Chief Justice John Roberts, who is in charge of hearing these emergency motions from the D.C. Circuit, which is where TikTok lost the case earlier this year. And so it's likely that the chief justice will circulate that to his colleagues and they will decide whether or not to pause the law. Ultimately, they'll have to decide whether to take the case itself to hear TikTok's appeal. And if they do that, then we probably won't know an answer ultimately until sometime in the summer.
MOSLEY: Is there any indication that the Supreme Court might look at this case differently than Congress and the lower courts?
ROZENSHTEIN: I don't think so. I mean, obviously, it's very difficult to predict, and we really won't know until there's the briefing and then the oral argument and then, really, the decision. But I take the decision of the D.C. Circuit as a pretty good barometer for what the Supreme Court's going to do. The D.C. Circuit panel was three very distinguished, very well-respected judges. It was a cross-ideological panel. So you had a judge appointed by Barack Obama, a judge appointed by Donald Trump and then a judge appointed all the way back by Ronald Reagan. And these three judges ruled quite comprehensively against TikTok on basically all of the important issues.
And so while the Supreme Court certainly is not going to defer to the D.C. Circuit, it's going to take the D.C. Circuit's view under consideration. And I think it's going to both use that as a signal in terms of what the right answer is, but also, I just think having - knowing what these three judges thought about the case just gives us a sense of what judges generally will. And I have trouble thinking that TikTok is going to get a much better reception at the Supreme Court than it did at the D.C. Circuit. Certainly, I don't think there are five votes on the Supreme Court to strike this law down.
MOSLEY: You know, this is uncharted territory for Americans. We've - I don't think that, you know, on a mass scale, we've ever experienced a ban - something that's so popular, the potential for it to be taken away. App stores like Apple have already been put on notice that they could be fined for hosting TikTok after January 19. I want to talk a little bit about some of the scenarios if the Supreme Court does not take up the case and the January 19 ban stays in effect. People are just wondering, what does that mean? Does TikTok just go away then?
ROZENSHTEIN: So it's not entirely clear what happens. The law works by - although it targets TikTok, it applies to, as you pointed out, app stores like Apple and Google and also cloud service providers like Oracle. These are the actual servers on which TikTok runs in the United States, and that's provided by companies like Oracle. And so the ban applies to these kinds of companies. And so on January 19, it becomes illegal for Apple to distribute the TikTok app on the app store. And it becomes illegal for Oracle, which is TikTok's U.S. cloud service provider to provide services to TikTok. So what happens on January 19?
It could be that TikTok just goes dark in the United States and you just cannot access it. I think more likely what's going to happen is that if TikTok thinks that the ban is really going to go into effect, it will move its infrastructure outside of the United States to physical servers that are not in the United States. Now, that's actually a very tricky thing to do. TikTok is quite large, and so, you know, moving to a different cloud service provider is not a trivial thing, but they can probably make something work. And so on January 19, it actually might be a seamless transition in the sense that if you already have TikTok on your phone, you may still be able to access it. But it might be quite a bit slower because now you're no longer accessing it in the United States, and also, your app will not upgrade over time. So as TikTok rolls out new features, as it finds bug fixes, your app is just going to stay.
And so, you know, I think that for the first day, week, month or two, it may be that TikTok users don't actually experience much - if at all of - the disruption. But the farther we get into the ban, the worse the TikTok experience is going to be. And I think the big worry for TikTok is that at some point, that experience will degrade sufficiently, that TikTok users will decide, hey, maybe I should look at one of the competitors like Instagram Reels or YouTube Shorts.
MOSLEY: I want to remind people that President-elect Trump actually got the ball rolling on all of this back in 2020. Can you remind us what he was pushing for back then when he was talking about imposing sanctions on TikTok and banning it back then?
ROZENSHTEIN: Yeah. It's quite a wild story. So before he was against the TikTok ban, President Trump was very much for the TikTok ban and, in fact, tried to ban TikTok and WeChat, which is another Chinese-owned communications platform. And he tried to do that under his own authority. Basically, Congress has, over the last 50 years, given the President really sweeping economic emergency powers to impose sanctions and other kinds of economic measures in the interests of national security and foreign policy. And so using those powers, Trump actually tried to ban TikTok. Now, those bans - those attempted bans - were challenged in court, and Trump actually lost all of those. But the reason he lost was because the court said that the statute that he was trying to use didn't give him that authority, because the statute actually had an explicit carve out for communications platforms.
So generally, the courts - with a few small exceptions - didn't reach the issue that is central to this case, which is, what happens if Congress unambiguously tries to ban TikTok? Can it do that under the Constitution? So that's why those cases turned out the way they did. And why although previous bans of TikTok have failed in the courts - at least before this one - that really wasn't an indication of what was going to happen with this case because this case was done under a totally separate law.
MOSLEY: As you mentioned, President-elect Trump now is for TikTok. He's been talking quite a bit about how TikTok has been instrumental in him winning the presidential election. I want to actually play a clip from his latest interview with NBC's Kristen Welker, where she references the ruling you mentioned earlier by the federal court last week that upholds the ban. And she asked Trump where he stands on the issue. Let's listen.
(SOUNDBITE OF ARCHIVED RECORDING)
KRISTEN WELKER: This week, a federal court upheld a law that could result in TikTok being banned. You said you're going to rescue TikTok when you get into office. Are you going to take steps...
DONALD TRUMP: Well, the problem with the TikTok...
WELKER: ...To protect it?
TRUMP: Yeah. And as you know...
WELKER: You are?
TRUMP: ...I used TikTok very successfully...
WELKER: Yeah.
TRUMP: ...In my campaign. I have a man named TikTok Jack. He was very effective, obviously, because I won youth by 30%. All Republicans lose youth. I don't know why. Maybe it's changing. And last time we were down 30% with youth. This time we're up 35% with youth. And I used TikTok, so I can't really, you know - I can't totally hate it. It was very effective. But I will say this. If you do do that, something else is going to come along and take its place. And maybe that's not fair. What they're doing - and really, what the judge actually said was that you can't have Chinese companies. In other words, they have the right to ban it if you can prove that Chinese companies own it. That's what the judge actually said.
WELKER: So are you going to try to protect TikTok - just very quick - once you're in office?
TRUMP: I'm going to try and make it so that other companies don't become an even bigger monopoly.
WELKER: OK.
TRUMP: Because that's what happens.
MOSLEY: That was President-elect Trump talking with NBC's Kristen Welker. Alan, Trump says several things here that I want to talk through. But I want to also know first, what power does he have at this moment that could determine the fate of TikTok?
ROZENSHTEIN: So the thing to keep in mind about this law is that, again, although it targets TikTok, the way it's enforced is not against TikTok directly, but against the app stores and the cloud service providers. And the reason that's important is because these are private companies, and they generally have the right to not do business with whomever they don't want to do business with. You can't force Apple to distribute the TikTok app. You can't force Oracle to provide cloud services to TikTok. And this is important because if Trump wants to help TikTok - and from that clip, it's not actually obvious that he does - but if he wants to help TikTok, the people he has to convince are the executives at Apple and Oracle. He has to convince the general counsel of Apple that when Apple CEO Tim Cook asks, well, should we continue to distribute the app, the general counsel says, yeah, I think that's OK. And so that's the audience.
And so with that in mind, there are a couple of things he can do. One thing he could do - and this would be the most direct and the most effective thing - would be to get Congress to repeal the law, 'cause if the law is repealed, then the law is repealed, and there's no issue. The problem there is that it's going to be very hard to do that. The law was passed with overwhelming bipartisan support. I mean, it was essentially as bipartisan as anything gets in contemporary Washington. And although, of course, Trump has a really strong hold on the Republican Party, and maybe some Democrats don't love the idea of banning TikTok, what they hear from their constituents, I am skeptical that Trump can get the votes - right? - that he - that even Trump has the political juice to get this thing done. And I think it would really have to be one of the main things he spends his political capital on in his first hundred days. I'm just not convinced he wants to do that.
So the second thing he could do is he could just declare that the government is not going to enforce the law. So the law is enforced through primarily penalties on these companies. The attorney general goes and sues Apple and Oracle for violating the law up to $5,000 per user. And as you mentioned before, there are 170 million American users of TikTok, so that adds up to a lot of money very quickly. So...
MOSLEY: So he could direct the attorney general, who will run the DOJ, not to enforce the law.
ROZENSHTEIN: Absolutely. Right? And that is within his power, and no one could really challenge that decision. The problem is that Trump is very mercurial. He changes his mind frequently. He often seems to be basically acting based on whoever was the last person he talked to. So just because he directs the attorney general not to enforce the law, that doesn't make the law go away. Apple and Oracle would still be in a position of violating the law. And again, if you're the general counsel of Apple - and certainly if I was - I would feel very uncomfortable telling my CEO to go ahead with an action that could potentially open my company up to billions of dollars in liability based on some Truth Social post that Trump made directing future Attorney General Pam Bondi not to enforce the law. So I don't think that's going to be good enough.
So the third thing Trump can do, and this is - I think if he wants to help TikTok, this is probably how he's going to do it - is to just declare that the law no longer applies. And the reason he can do that is because the law bans TikTok unless ByteDance, TikTok's Chinese owner, performs what's called - what the law calls a qualified divestiture - basically, a qualified sale. And then the law also defines what a qualified divestiture is. And it says a qualified divestiture is when the president determines, after an interagency process, that - and then there's a bunch of language about what's supposed to actually happen. TikTok is no longer owned by ByteDance; TikTok is no longer owned or controlled by a Chinese entity, and so on and so forth. But if you just focus on the first few words of that definition, the president determines - well, that does give the president some power.
Now, one way you can read that is to say that the president gets some amount of discretion - maybe a little bit of discretion, maybe a lot of discretion - to determine what counts as a qualified divestiture. And it's not clear who would be able to challenge that kind of determination - specifically, who would be able to challenge if Trump just declared that ByteDance has performed a qualified divestiture. And so there's a scenario in which ByteDance could move some papers around, shift some assets from one corporation to another corporation, do some fancy legal work. And that would give Trump enough, basically, cover to declare that TikTok is no longer controlled by ByteDance. The question, ultimately, however, is - is that going to be enough for the Apples and Oracles of the world to continue to do business with TikTok?
MOSLEY: Right.
ROZENSHTEIN: And we just don't know the answer to that question.
MOSLEY: Let's take a short break. If you're just joining us, I'm talking with law professor Alan Rozenshtein about the impending ban of the social media app TikTok. We'll continue our conversation after a short break. This is FRESH AIR.
(SOUNDBITE OF THE POLITICIANS SONG, "FREE YOUR MIND (FEAT. MCKINLEY JACKSON)")
MOSLEY: This is FRESH AIR. Today, we're talking to Alan Rozenshtein, an associate professor of law at the University of Minnesota Law School and a senior editor at Lawfare. He's been writing for The Atlantic about the threat Congress says TikTok poses to national security, and what a decision to ban it could mean for our First Amendment rights. On Monday, TikTok asked the Supreme Court to block a law that could ban the app. That law will go into effect on January 19, if the justices don't grant the company's request. I left off talking with Rozenshtein about Trump's options to save TikTok.
You gave three scenarios. But then there's the fourth scenario that I guess is kind of the unlikely scenario, is that the president could push for sale to an American company. But that has already been on the table for quite some time. And I found that interesting that Congress was mandating that because China has a law that blocks Chinese technology from being sold to an American buyer, and the algorithm is the beating heart of TikTok. So how feasible would it ever be that this company without the algorithm is sold to an American company? Would it still have value if that scenario were to happen?
ROZENSHTEIN: It's a great question. I think it would definitely have value. The question is, how much value? So there's no question that TikTok became very popular because it had a better algorithm, right? ByteDance built a better mousetrap than the American social media companies when it came to short-form video, and the market rewarded them, as the market ought to. At this point, it's actually not clear to me how much of the value of TikTok is in the algorithm and, let's say, how much better that algorithm is to the other comparable algorithms, because, of course, Meta's TikTok competitor has its own algorithm. Google's TikTok competitor has its own algorithm. And all these algorithms, they're pretty similar.
You know, at this point, to make a good algorithm, you need a big company with a lot of data and a ton of compute and a lot of good machine-learning engineers, which Meta and Google all have. So I suspect that even if TikTok's algorithm is the best, it's not orders-of-magnitude better in the way that it might have been when TikTok first started. And so what I think...
MOSLEY: Can I give you an example, though?
ROZENSHTEIN: Sure. Sure.
MOSLEY: Like, I just have to say - so I did a Google search after TikTok appealed to the Supreme Court yesterday, and I typed in, what happens now that ByteDance has asked the Supreme Court to intervene? And a few articles came up. I read them all, but I didn't get the answer to my question. And then I decided to go on TikTok, and I typed that question into the TikTok search engine. And there, I got a slew of videos explaining exactly what I was asking for. Now, whether it was accurate, I mean, of course, that is another topic. But I think this is an example of why this platform is so attractive to users as a search engine and a place to get news.
ROZENSHTEIN: I mean, clearly, this is telling me that I need to get on TikTok if I'm a law professor...
MOSLEY: (Laughter).
ROZENSHTEIN: ...And there's a demand for these kinds of answers. No, again, there are many things that might be going on here. One, it might be that the algorithm is better. But the other thing that might be happening - and I think this is maybe more relevant to the original question - is the content on TikTok might be better, which is to say, there may be more people on TikTok, and they're, quote-unquote, "better" people in the sense of creating content. But that is different than the algorithm, and that can be sold. So what there is no Chinese law against is ByteDance selling TikTok without the algorithm, and that itself might be valuable enough.
Now, it's not going to be as valuable as TikTok with the full algorithm, but it might still be quite valuable. And one can imagine a situation in which a U.S. company buys TikTok, which is to say it buys all its users; it buys all the content; it buys the network itself, minus the algorithm, and then replaces the algorithm with something else. Now, it won't be as good, but it probably will be good enough to keep the people on TikTok on TikTok. And because the algorithm is really based on the data, at some point, that new owner will have enough data to recreate something like the algorithm.
But I would say the deeper issue here is, yes, there is a law in China that prohibits the sale of the algorithm because it prohibits the export of Chinese technology. But we have to be realistic here. What's going to determine whether ByteDance sells TikTok is not Chinese law, but the Chinese government, right? We take for granted in the United States and in liberal democracies that a private company is a private company and that although it has to comply with the laws of the jurisdiction, it's still a private company. That's just not the case in China. It doesn't matter what the laws in China say.
At the end of the day, China is an authoritarian police state in which the Chinese government, and specifically Xi Jinping, the head of China, decides all the important issues. So if Xi Jinping wants ByteDance to sell TikTok, ByteDance will sell TikTok. If Xi Jinping does not want it to, with or without the algorithm, ByteDance will not sell TikTok. But it's not a question fundamentally of Chinese law. It's a question of geopolitics.
And so, you know, I think what Trump can do most productively, if he wants to, is not try to get a U.S. buyer, right? There are plenty of U.S. buyers lining up to do this. The problem was never getting a U.S. buyer. It's doing whatever diplomacy is necessary to do with Xi Jinping in order - if, you know, the law is upheld - for this transaction to go through. And the question is both one of desire on Trump's part, does he want to use his political capital in this way, especially since he likes to be seen as very tough on China, and he's potentially preparing a whole trade war and tariff war with China? And then the other question is capacity. Can Trump do this? Can Trump do this kind of diplomacy?
MOSLEY: Let's take a short break. If you're just joining us, I'm talking with law professor Alan Rozenshtein about the impending ban of the social media app TikTok. We'll continue our conversation after a short break. This is FRESH AIR.
(SOUNDBITE OF MUSIC)
MOSLEY: This is FRESH AIR. I'm Tonya Mosley. And today, we're talking to Alan Rozenshtein. He's an associate professor of law at the University of Minnesota Law School and a senior editor at Lawfare. He's been writing for The Atlantic about the threat Congress says TikTok poses to national security and the decision to ban it here in the United States. This past Friday, the D.C. Circuit of Appeals rejected a request to pause that ban temporarily. And on Monday, TikTok asked the Supreme Court to take up the case. Last April, President Biden signed into law a bill requiring TikTok, owned by the Chinese Company ByteDance, to be sold to a non-Chinese company.
You know, the big question for many people is, what evidence does the government have that the Chinese government might be using our data in nefarious ways, because we know that all of the tech companies have so much information about us. The difference is that this is a Chinese company. What evidence does our government have or has given? They seem to have been pretty tight-lipped on what information they have that could be of concern.
ROZENSHTEIN: So a couple of points here. So the first is, you're right, some of the evidence is classified. We won't know that, ever. So the government during the debates in Congress about the law, delivered a set of classified briefings to the House and the Senate. Some of these, at least, were very powerful. You know, there was one famous example where I think the briefing was given to the House, and a bunch of representatives walked into that briefing, and they talked to journalists beforehand, saying how skeptical they were of the law, and then they walk out of that briefing saying that they supported the law 100%. So clearly, the government - the intelligence agencies and the FBI - told Congress something.
Similarly, during the litigation at the D.C. Circuit, the government submitted classified information that was only available to the judges and not to the litigants, to TikTok and obviously not to the public. TikTok was very upset about this and wrote a brief asking the judges not to use this evidence. Notably, in the opinion, the judges explicitly said that they were not using that evidence - not because they objected to it, but because they didn't need to - that they were comfortable upholding the law based purely on what was in the public record, which I think is notable.
So what's in the public record? What do we know? On the one hand, what we don't have - and the government has never pretended actually in its - to its credit - what we don't have is smoking-gun evidence, right? We don't have evidence of the Chinese government telling ByteDance to either collect U.S. person data from TikTok and give it to the Chinese government or to modify the algorithm so as to boost some pro-Chinese content. And these are the two concerns - data privacy and content manipulation. These are the two concerns that Congress cited when passing the law. So we don't have a smoking gun. But what we do have, I think, is everything short of that, right? We have a gun. It's on the table. It's loaded, and it's pointed at us. And what I mean by that is, we know - and there's years of evidence about this - that China has both the means and the motivations to carry this kind of behavior out.
MOSLEY: Trump makes this point in that interview with Welker from NBC that others have also made, and that's that all of these tech companies also have unfettered access to our data. John Oliver pointed this out on his show "Last Week Tonight." Let's listen.
(SOUNDBITE OF TV SHOW, "LAST WEEK TONIGHT WITH JOHN OLIVER")
JOHN OLIVER: The condescension of, just trust us, can get really frustrating, especially when it's expressed like this.
JOHN MOOLENAAR: I think it's important to recognize we're actually doing this to protect the privacy of Americans. People feel like they're taking their rights away, but it's actually protecting their privacy.
OLIVER: But is it, though? Because in a world where Instagram knows your location. Uber knows your childhood fears. And DoorDash has a detailed 3D rendering of your small intestine its executives use as a screensaver...
(LAUGHTER)
OLIVER: ...Claiming you're protecting Americans' privacy by banning TikTok feels like claiming you're fighting climate change by banning the Kia Sorento.
(LAUGHTER)
OLIVER: Sure. I mean, it's technically not nothing, but it is, in a larger sense, basically nothing.
(LAUGHTER)
OLIVER: One of the reasons this story is difficult to navigate is there is so much we don't know, and coming from two sides I don't remotely trust. Because you're either taking the word of a multinational tech company that profits off your data or the U.S. government, which seems more than happy to turn a blind eye whenever American companies do the exact same thing.
MOSLEY: That was John Oliver on "Last Week Tonight" saying the thing that most people actually feel - that at this point, if you're on these apps, American-owned or not, they already have your data. And then there is the question of trust. When the government's not really telling us what they know, they're just saying trust us that this is a threat to you, it really poses a real issue for Americans when they're thinking about the potential for this app being banned.
ROZENSHTEIN: Yeah, look, none of this is great. I want to emphasize - this is not a good outcome. This is just a bad - this is just a less-bad outcome in the eyes of the government, and - at least in my estimation, based on what I understand. But reasonable people can very much can disagree here. I want to emphasize that. It's just a less-bad outcome than the other outcomes. You know, with respect to John Oliver's point about data privacy, I would say the following. It is a mistake - and I don't think the government has justified this law in this way. If it has, it's been a mistake. It's - the law is not justified as a general data privacy law. It is a data privacy law about the specific threat that China poses to the data privacy of Americans. That's different than a generalized data privacy concern.
Now, we can have that - that's a very separate conversation, which we can have, about, is it a good thing that DoorDash, (laughter) as John Oliver says, has a picture of your small intestine, right? I don't love that either, but that's not the concern at issue here. The concern here is not just that someone has your data, right? The problem is that the Chinese government has your data, and the Chinese government is differently situated towards us and American interests than a for-profit American company is. Now, should we have comprehensive data privacy legislation? Quite possibly. But that's just a separate conversation from the conversation here, which is about national security and data privacy, which is why, even if you're against this law overall, I don't think you can just say, oh, well, TikTok is no different than any other, you know, data-hungry company. It's very different because it ultimately answers to Xi Jinping. And last time I checked, that's just not true of, you know, Mark Zuckerberg.
MOSLEY: Let's take a short break. If you're just joining us, I'm talking with law professor Alan Rozenshtein about the impending ban of the social media app TikTok. We'll continue our conversation after a short break. This is FRESH AIR.
(SOUNDBITE OF MUSIC)
MOSLEY: This is FRESH AIR. And today, we're talking to Alan Rozenshtein, an associate professor of law at the University of Minnesota Law School and a senior editor at Lawfare. He's been writing for The Atlantic about the threat Congress says TikTok poses on national security and what a decision to ban it could mean for our First Amendment rights. On Monday, TikTok asked the Supreme Court to block a law that could ban the app. The law will go into effect on January 19 if the justices don't grant the company's request.
For the average American, they may have a hard time understanding when we say that TikTok could be a threat to national security. If you're just a regular, old content creator in Middle America or you're someone who just likes to look at TikTok before you go to bed each night, what are some of the concerns that you have? And you're already on all the apps already, and all the apps already have your information. What are some of your concerns about what China could do with our data? I know that propaganda has also come up in many instances, as far as TikTok's scope and influence in our country. But what are some, like, real ways that they could be a threat?
ROZENSHTEIN: Yeah. So when it comes to the data, if you're just a normy American watching cat videos on TikTok, there's not a huge data concern. It's more for the millions of Americans that do have potentially sensitive positions in the government, where their viewing history might tell Chinese intelligence agencies something useful about them. Now, it is true that other platforms have a lot of information about them. But those are other platforms, and they're not controlled by the Chinese. Now, it's also true that those platforms can sell that data to third-party data brokers, and so the information can get to the Chinese government one way or the other.
MOSLEY: Yeah.
ROZENSHTEIN: But it's actually notable - and this has, I think, been underreported - that simultaneously with the passage of the TikTok law, Congress also passed a law prohibiting the sale, including from data brokers, of information on Americans to countries like China. So Congress actually did try to tighten up the kind of leaky data pipeline. But it is - it remains true that this law will not solve the data privacy problem, even with respect to China, but it's very rare that any piece of legislation can comprehensively solve an entire problem. The question is, can it make a meaningful difference in that problem and is that marginal improvement worth the cost to free speech? That's the data privacy issue.
On the content manipulation issue, I think the concern there is that, you know, let's say the United States and China get into a shooting war over Taiwan. Right? Do we want a situation in which China then modifies the algorithm so that 170 million Americans, including many young Americans, many of whom get the bulk, if not virtually all of their news from TikTok - you know, people aren't reading The New York Times as much. They're tragically not listening to NPR as much - right? - as much as I wish they would. I mean, a lot of them are just getting their news on TikTok.
MOSLEY: Right.
ROZENSHTEIN: Do you want to wake up that morning and have their news feeds flooded with anti-American, anti-Taiwanese, pro-Chinese propaganda?
MOSLEY: You mentioned how the concern over data privacy is not necessarily with ordinary people's data, but users who have positions in the U.S. government. We've heard of the government banning the use of certain apps before. Why couldn't lawmakers just ban government employees from using TikTok instead of a full-on ban?
ROZENSHTEIN: So the government can ban the use of TikTok on government devices. And, in fact, there are some states that have done this. I don't think that really poses many First Amendment problems. Of course, if the government tried to ban anyone working for the government from using TikTok, I mean, that's a lot of people. That - and that would actually raise its own First Amendment concerns that would be quite similar to the concerns raised by the law more generally. And there's also a concern that even if you keep government users from using TikTok, if the family members of those users are using TikTok, a smart intelligence agency like the Chinese has can still glean a lot of information. And then when you take that and then you add the content manipulation concern, it just becomes a lot cleaner to ban the whole app.
MOSLEY: You talked about a scenario where TikTok could take U.S. user data and put them on different servers. And there was this project that they announced some time ago called Project Texas, in partnership with Oracle, where they said they would house U.S. user data on U.S. servers. How would that work? I guess the bigger question is, is it even possible for ByteDance to separate American user data? I'm curious how that would work.
ROZENSHTEIN: So Project Texas was this very elaborate and, as far as I can tell, quite well-thought-out and in-good-faith attempt to assuage some of the national security concerns. Because for years before this law was passed, TikTok was in negotiations with a government entity called CFIUS - the Committee on Foreign Investment in the United States - which deals with these national security issues when foreign entities, you know, invest in the United States and have a large U.S. presence. And as part of that, they came up with this elaborate plan that they called Project Texas. Which, as you point out, would create sort of a special, U.S.-only Oracle cloud in which the U.S. data would be held and in actually which the algorithm would be held. And that there'd be all these rules and procedures to separate TikTok from ByteDance, and that there'd even be a board partially appointed by the U.S. government that would oversee this. And so, you know, it's hard to know all the details of that, and it's particularly hard to know how that would have actually played out in practice.
TikTok's position was that that would have assuaged all or nearly all of the government's concerns. And, therefore, something like a ban is unnecessary, especially given the First Amendment cost of that ban. The government's position, and this was something that Congress agreed with and also that the court agreed with, was that there would still be too much of a residual risk. Because at the end of the day - right? - unless you have an actual divestment, you still have TikTok being controlled by ByteDance. You still have the algorithm. Even if it's, in some sense, held in the United States, it's still getting - it's still being updated from China itself. And we know that because the whole problem that ByteDance is pointing out with the sale is that the Chinese won't let the algorithm fully exit the United States.
And then even if you have a good system, it has to be monitored. Right? You have to make sure there's no cheating involved. That's very hard to do. Right? That would involve the government in this ongoing process of looking at this. And, you know, if what you're concerned about is, you know, a real moment of international emergency, right? Again, the example I think of always is the U.S. and China get into a shooting war with Taiwan - that no amount of procedures and corporate barriers will prevent the Chinese government from exercising control if it really wants to, short of an actual separation in which the Chinese government doesn't even have the capability of control. But it's ultimately a judgment call of how much risk are you willing to tolerate? Congress was not willing to tolerate essentially any risk, and the courts were not willing to overturn that judgment from Congress.
MOSLEY: How important is the U.S. in the lifeblood of TikTok? I think it's interesting that TikTok is not even available to people in China.
ROZENSHTEIN: I think TikTok - I don't have the exact numbers of how the 170 million American users stack up to the global TikTok user base. I think it's very important. I mean, America is a massive market, always, but it's also such a culturally central market, right? I mean, if you want to be on a global platform and that platform does not have the United States, it's kind of not a global platform. So while I suspect TikTok will - even if it's banned in the United States, even if it loses its presence in the United States - it will still continue to exist. It'll certainly be weakened and the network effects of TikTok. And this is the idea that social media platforms gain their value to their users in part because other users are using them. Those network effects will take a huge hit and will put TikTok - not just in the United States, but also globally - at a pretty profound competitive disadvantage relative to other competitors like Instagram Reels, like YouTube shorts, that will include, in addition to other countries the very important - the culturally, very important user base of Americans.
MOSLEY: Alan Rozenshtein, thank you so much for this conversation.
ROZENSHTEIN: Thanks for having me.
MOSLEY: Alan Rozenshtein is an associate professor of law at the University of Minnesota Law School and senior editor at Lawfare. Our interview was recorded yesterday. And this morning, the Supreme Court announced it will take up TikTok's appeal to the law banning it, and we'll hear oral arguments on January 10. This is FRESH AIR.
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