TikTok Prepares for U.S. Ban

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Brigid Bergin: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. I'm Brigid Bergin in for Brian today. Last April, President Joe Biden signed a law requiring ByteDance, the Chinese company that owns TikTok, to sell its US assets to an American company by January 19th, 2025, or face a nationwide ban due to national security issues. TikTok took the ban to the Supreme Court. In oral arguments made Friday, January 10th, lawyers for TikTok, its users, and parent company ByteDance argued that the ban violated the First Amendment. Let's take a listen to lawyer Noel Francisco.

Noel Francisco: The government has no valid interest in preventing foreign propaganda. Its fallback that it seeks merely to prevent covertness makes no sense since that could be addressed with a risk disclosure. The government's real target rather is the speech itself, its fear that Americans, even if fully informed, could be persuaded by Chinese misinformation. That, however, is a decision that the First Amendment leaves to the people.

Brigid Bergin: This morning, however, the Supreme Court upheld the ban. In the decision, the justices write, "TikTok offers a distinctive and expansive outlet for expression, means of engagement, and source of community, but Congress has determined that the divestiture is necessary to address its well-supported national security concerns regarding TikTok's data collection practices and relationship with a foreign adversary." The decision comes as TikTok is actually picking up new bipartisan support from lawmakers.

Yesterday, top Senate Democrat Chuck Schumer urged President Biden to extend the deadline by 90 days. President-elect Donald Trump, for his part, has signaled he'd sign an executive order to overturn the ban. TikTok is ubiquitous. One-third of US adults use TikTok as do 6 in 10 teens, according to a recent poll from Pew. That's about 170 million American users. What does this all mean for them?

Joining us now to explain are Sylvia Varnham O'Regan, reporter covering social media companies for the tech news site The Information, and Emily Bazelon, staff writer for The New York Times Magazine, co-host of Slate's Political Gabfest podcast, Truman Capote fellow for creative writing and law at Yale Law School, and author of Charged: The New Movement to Transform American Prosecution and End Mass Incarceration. Hey, Sylvia, welcome to WNYC. Emily, welcome back.

Emily Bazelon: Thanks so much.

Sylvia Varnham O'Regan: Thanks for having me.

Brigid Bergin: Listeners, we're wondering how many of you are TikTok users out there. How do you use the social media app? What does it mean to you? Give us a call now at 212-433-WNYC. That's 212-433-9692. Calls from TikTok users or people who have questions about what this decision means. Maybe you want to weigh in on the recent news. Help us report this story. You can call or text this number.

Sylvia, I want to start with you. Before we get into the decision, I just want to start with how we got here. This started back in March when the House of Representatives overwhelmingly voted for a TikTok ban, 352 to 65 in the House. Then it was kicked up to the Senate and, as I said, signed by President Joe Biden. Remind us, what was the central concern US officials and lawmakers had regarding TikTok?

Sylvia Varnham O'Regan: Yes, so as you mentioned, TikTok is owned by a Chinese parent company, ByteDance. The main concerns that US lawmakers had about TikTok were broadly that personal data of US users could be accessed by the Chinese government and that the government would be able to potentially spread misinformation to TikTok's 170 million US users through TikTok's algorithm, potentially influencing political debate. Those were some of the major concerns driving this.

Brigid Bergin: Emily, in a unanimous decision handed down this morning, the Supreme Court has sided with that original ban. First, can you explain why TikTok's lawyers were arguing that this was a violation of the First Amendment? Whose First Amendment rights were they talking about?

Emily Bazelon: The lawyers were arguing that this violates the First Amendment because there's just a ton of speech on TikTok. It has 170 million users and it's an enormous platform. In some ways, that part of the argument is kind of self-evident. There were two challenges here to this ban. One was TikTok itself. The company tried to argue that it was independent enough of ByteDance and Chinese control that it had its own American First Amendment rights. Then the second set of challengers are people who use TikTok and make creative content on it. They were arguing that the ban was obviously going to prevent them from doing that.

Brigid Bergin: Emily, in last week's arguments, Justice Samuel Alito and Solicitor General Elizabeth Prelogar were trying to clarify with this ban should be upheld because TikTok is owned by a Chinese company. Let's take a listen to that exchange.

Justice Samuel Alito: Your argument depends on the fact that what is at bottom here is the People's Republic of China using TikTok. That's what your argument depends on. If this were an American corporation, it'd be an entirely different thing.

Solicitor General Elizabeth Prelogar: Exactly. The reason we know the statute is different is because all of the same speech that's happening on TikTok could happen post-divestiture. The act doesn't regulate that at all. It's not saying you can't have pro-China speech, you can't have anti-American speech. It's not regulating the algorithm. TikTok, if it were able to do so, could use precisely the same algorithm to display the same content by the same users. All the act is doing is trying to surgically remove the ability of a foreign adversary nation to get our data and to be able to exercise control over the platform.

Brigid Bergin: Emily, will you unpack that argument from the Biden administration just a bit further and how it seemed to sway the justices in their decision?

Emily Bazelon: Yes, it's a really key concession and limitation that the solicitor general is making here, right? She's saying, "Okay, if ByteDance sells and TikTok operates with the same algorithm, but it's controlled by an American corporation, then, yes, we accept the legality of that. We think the First Amendment would preclude a ban," but that's not the situation here.

The situation here is one in which ByteDance has refused to sell and they say they will not ever export their algorithm. I think what you see here is a kind of problem for the challengers, right? They're trying to argue on the one hand that TikTok is American, not controlled by a Chinese entity. On the other hand, this Chinese entity is saying, "Well, we won't sell because we want to control how this platform operates."

Brigid Bergin: Listeners, if you're just joining us, we're talking about the news breaking this morning about the Supreme Court's decision to uphold the TikTok ban. We're looking for callers to tell us, how do you use TikTok and how are you reacting to this news? The number is 212-433-WNYC. That's 212-433-9692. We want your reaction to the news. We want to know how you're seeing the news play out on TikTok. I want to go to one of our callers right now, Liz in Brooklyn. Liz, welcome to WNYC.

Liz: Hi, thank you. First-time caller, very longtime listener. I talk about musical theater on TikTok and the Broadway community, off-Broadway community theater in New York, all that. I started about a year ago. I'm pretty shy in real life and I'm very afraid of failing, so it's kind of a shock that I've stayed on and done this. I've developed a little community.

I make no money or anything like that, but I'm heartbroken. I'm heartbroken to lose the community that I've developed there with no special skills, no special equipment. I also think it's really interesting that right after that, all the headlines were saying that the Equal Rights Amendment had been effectively ratified and they're banning an app that has allowed a lot of women to profit. Yes, that's it. [chuckles]

Brigid Bergin: Liz, if I could ask you before you go, are you planning to shift to another platform or do you have an alternative for TikTok that you rely?

Liz: I'm on Instagram for now, obviously having a lot of feelings about being on a Meta app after this, and also on Bluesky and RedNote. Can I just say my little tag-

Brigid Bergin: Sure, go for it.

Liz: -or my handle?

Brigid Bergin: Absolutely.

Liz: @thatbroadwaybaker. @thatbroadwaybaker.

Brigid Bergin: @thatbroadwaybaker.

Liz: Anyway.

Brigid Bergin: Liz, thank you so much for calling. As a content creator on TikTok, we really appreciate hearing your reaction to this news. Sylvia, the initial concern over Chinese influence on American social media users really falls into a couple of buckets, so I want to take it one at a time. First, there's the data mining issue. Can you explain to us what type of information TikTok can get from its users and what the fears are about how that data might be used?

Sylvia Varnham O'Regan: Yes, so TikTok gathers quite a lot of different types of data about users like other social media platforms, I should say. That includes location data, people's ages, their interests, browsing activity, who they're associated with. I think the concern is that this type of information could be used to build out profiles of users of TikTok and to conduct surveillance of US citizens. This information is all incredibly valuable. It creates a strong impression about who individuals are. It's highly detailed. There is a concern, again, that this information could be used to manipulate public sentiment or to send messages through the algorithm that draw on that information that TikTok has about its user base.

Brigid Bergin: Emily, just wondering from that caller, any reaction to her comments also related to the ERA race since I know that's something that you also follow?

Emily Bazelon: Yes. Well, unfortunately, the ERA has not been ratified. You can hear from that caller, and I'm sure a lot of people feel this way, a real sense of loss. What happens on social media platforms is that you benefit from the network that you build there. It's not necessarily easy to replace that. This is the downside of this kind of for sale. I think that ByteDance is making a choice here not to divest.

This also is a process that originated in the democratic process because we have Congress instituting this ban. The Supreme Court is ruling on whether that's constitutional, but our elected representatives collectively in the country chose to pass this ban. There is a political organizing front to respond to them on. You can go back to your elected representative and say, "I think this is a really bad idea." That avenue is still open.

Brigid Bergin: Sylvia, pivoting back a little bit, we've reported on this show that the US knows that the Chinese version of TikTok is heavily censored. It doesn't show its Chinese users' content about real historical events like Tiananmen Square, the detention of the ethnic Uyghur Muslim population, and so on. Why did the US lawmakers find that to be a potential threat?

Sylvia Varnham O'Regan: Well, the Chinese version of TikTok doesn't operate in the US to be clear. That is a separate app. Broadly, there is this concern around how the recommendation system that underpins TikTok could be used to push political messages, fuel misinformation, influence elections because, remember, TikTok's algorithm recommends content to you. It has a lot of control over what you see. The algorithm is really the secret sauce that makes it so addictive and so popular, but it also means that the app decides what you see, which is quite a powerful position for the controller of that product in terms of influencing users potentially. Yes, that's a big part of this also is how the algorithm actually functions.

Brigid Bergin: Sylvia, that leads me to a question that a listener just texted us. Listener writes, "Except for the fact that TikTok is owned by a Chinese entity, how is Facebook any different from TikTok after Facebook's decision not to fact-check anything?

Sylvia Varnham O'Regan: [chuckles] Well, that's a big question. Look, there are a lot of similarities between social platforms in terms of the types of information they gather as I mentioned before and how intimately they know their users. They do have a lot of power. They are such a big part of so many of our lives. Of course, TikTok is an entirely different company with a different ownership structure, so there are structural differences there.

Meta or Instagram, its apps, I should say, Instagram, Facebook, that company is going through some change in their content moderation system. I'm not sure exactly how to answer that because I feel like it's just such a huge space. Candidly, as a social media reporter, I'm still trying to understand how Meta's changes to its content systems will actually be implemented.

We reported yesterday at The Information, my colleague reported that an employee actually asked the CTO of Meta a question about that as it related to their metaverse products. The CTO responded that he wasn't actually sure how some of these things would be implemented. That's still very much in flux, but I think it's fair to ask questions in general about social media companies, how they use our information, and what we can expect in terms of privacy.

Brigid Bergin: This is a hot topic for texters, which, I guess, makes sense since if you're using your phone a lot, perhaps your favorite way to communicate is to text. Another listener wrote to us asking, "Is there actual evidence that China is misusing Americans' data? This doesn't feel surgical at all. Feels like it's about competition. We know the US-based social media companies have actively manipulated users by running experiments without our knowledge or consent." Just briefly, Sylvia, is there evidence that China has misused American data at this point?

Sylvia Varnham O'Regan: Well, ByteDance or TikTok has rejected the accusations that it misuses data. It said that it stores the data of US users outside of China or in places like the US or in Singapore. It denies those charges against it or those accusations.

Brigid Bergin: President-elect Donald Trump, who will take office on Monday, of course, is weighing an executive order that could effectively overturn the ban, according to The Washington Post. Representative Mike Waltz, a Republican from Florida and Trump's national security advisor nominee, weighed in on Fox & Friends yesterday. Let's take a listen.

Representative Mike Waltz: Well, President Trump, and this is in line with the legislation, we will put measures in place to keep TikTok from going dark. The legislation allows for an extension as long as a viable deal is on the table. Essentially, that buys President Trump time to keep TikTok going. It's been a great platform for him and his campaign to get his America First message out. At the same time, he wants to protect their data. Conservatives don't want the FBI and they certainly don't want the Chinese communists getting their passwords, getting their data, and being able to overly influence the American people.

Brigid Bergin: Emily, can President-elect Trump just sign this away with an executive order given all that's happened in the Supreme Court?

Emily Bazelon: I don't think so. Then someone would challenge that executive order and say that the congressional ban overrides it. There'll be a challenge to the Supreme Court and we'll have a legal fight over that. There is a provision in the law that the new president, once Trump is president on January 20th, could grant a 90-day extension, but only if there is a viable buyer on the table. Right now, as far as I know, there isn't one, although Elon Musk has been talking about that.

I think one of the questions really gets at the competing considerations and harms here. Congress was worried about national security interests and the Chinese vacuuming up lots and lots of American personal data and maybe using it for nefarious purposes. Another concern is taking out a competitor to other social media platforms. Especially if someone like Elon Musk, who already owns a big platform, X, were to buy it, we would have even less competition in the social media space. I think that is another maybe unintended consequence that's hovering out there.

Brigid Bergin: Let's go to Bill in Woodbridge, New Jersey. Bill, thanks for calling WNYC.

Bill: Thank you for taking my call. My question is this. I don't understand why so many people got onto TikTok and used it as a daily platform when we've known pretty much since day one, it's a Chinese-owned company and there were concerns about national security. I think I have a TikTok account. I chose not to use it because, hey, maybe they're spying on my data. Now, of course, that brings up the other concern of, "Well, anybody could say anything about any company," but it is a clear fact that it is owned by the Chinese. That's my question. Why would we all jump onto it and then say, "Oh, my freedom of speech rights," when we know from the beginning, this might be a real problem for us as a country?

Brigid Bergin: Bill, thanks so much for your call. Sylvia or Emily, if you want to react to that. I think what we hear in Bill is the skepticism from people who maybe never became TikTok users. Is that something that you can help him understand why it became such a phenomenon?

Emily Bazelon: Well, I think people really liked it. Go ahead, Sylvia.

[laughter]

Sylvia Varnham O'Regan: Yes, no, I was just going to say the same thing. I think people really liked it. They found it to be really engaging. I think there is a bit of a tension that we're seeing playing out between some of those national security concerns and the joy that people get just using the app and gaining big followers. It's a huge part of the creator economy as well. A lot of people have found huge followings on it and been able to share their lives and monetize that. Even Donald Trump, who initially wanted to ban the app, has recently gained popularity on there and had a change of heart around it. I think it's complicated.

Brigid Bergin: Sylvia, we were hearing in that clip before that the Trump administration is still pushing for the sale of TikTok. The Washington Post reports it costs around $50 billion. How viable do you think that is? Are there any American companies signaling interest?

Sylvia Varnham O'Regan: Yes. Well, several different people have actually expressed interest in buying TikTok. That includes billionaire Frank McCourt, the creator MrBeast, although I'm not sure how serious that was, and the former CEO of Activision Blizzard as well. As Emily mentioned, there have been reports recently that Chinese officials were weighing a deal for Elon Musk to buy TikTok's US operations, although TikTok denied that report and said it was a fiction.

There have been different reports about people expressing interest in buying TikTok. So far, it seems like TikTok has been very focused on the legal fight and hasn't seemed particularly interested in entertaining a sale or a divestiture. I think these are all really important questions, but it doesn't seem from my knowledge that a deal is likely. This is such a fast-moving story that who knows where it goes?

Brigid Bergin: If you're just joining us, I'm Brigid Bergin from the WNYC and Gothamist newsroom filling in for Brian. We're talking about TikTok with Sylvia Varnham O'Regan, reporter covering social media companies for the tech news site The Information, and Emily Bazelon, staff writer for The New York Times Magazine, co-host of Slate's Political Gabfest podcast, the Truman Capote fellow for creative writing and law at Yale Law School, and author of Charged: The New Movement to Transform American Prosecution and End Mass Incarceration. I want to go to another caller. Let's speak to Frederick in Princeton, New Jersey. Frederick, thanks for calling.

Frederick: Yes, hello. Thank you so much for taking my call. Does it occur to anybody? I really do believe that Ray Charles could see this whole thing that the Supreme Court and Donald Trump are one. What's going to happen here is that you're going to find a buyer here, Elon Musk or whoever, and they're going to put it in the hands of Trump supporters who have paid for him to be elected. Does anybody really see this instead of going to all this intellectual jargon about what's going on? Please answer me.

Brigid Bergin: Frederick, thanks for your call. Emily, you want to respond at all to Frederick's take on what this support for TikTok is really about?

Emily Bazelon: Yes, sure. I think that I understand your cynicism. It's important to note, though, that this ban that Congress passed had lots of bipartisan support. It passed before anyone knew Trump was going to be elected president. Trump, as we were discussing earlier, seems maybe like he's going to try to prevent the ban from happening. Now, I know our caller thinks that's to facilitate a sale to a Trump supporter. If Musk buys TikTok, then that would add fuel to that idea. The original impetus here for banning TikTok was not Trump's. It was not a Republican idea particularly. It was bipartisan.

Brigid Bergin: In terms of this decision today, Emily, The New York Times is reporting that, delivered on such an abbreviated schedule there, this decision has few rivals in terms of First Amendment precedents. Can you take it a step further? What are some of the broader implications of this ruling?

Emily Bazelon: Well, that's a really good question. The court knows that it's in a big rush here. It was trying to be really clear that it's just limiting itself to this particular case. There's a lot of language in the decision about how we're really trying to make clear, we're deciding this particular question in front of us on as narrow grounds as we can come up with here.

We're not making a sweeping ruling that necessarily is going to apply in other circumstances. Basically, the court is weighing heavily, the fact that Congress was really worried about national security and seemed to have some reason to think that, yes, indeed, TikTok is vacuuming up all this data. The court is hoping like, "That's it. We're not writing one for the ages here."

Justice Gorsuch wrote a concurrence in which he was really explicit about this and said basically, "Look, I have a lot of questions and some doubts, but I'm convinced on this record that this is the right decision today, and that's good enough." The court's entire opinion, I should say, started with a quote about trying not to embarrass the future. You can see that the justices are trying to be a little humble here in making it clear that they're doing the best they can on a short timeline.

Brigid Bergin: Sylvia, I know we don't know exactly what will happen yet, but TikTok users on Sunday say President-elect Trump doesn't immediately sign some executive order that could change it. Will the app just go dark or what's going to happen?

Sylvia Varnham O'Regan: Yes, great question. My colleague Kaya and I at The Information actually broke the news earlier this week that TikTok is planning to shut down the app for US users. What that means is that, say, for some kind of intervention, the app will go dark and users from our understanding who open it will see a pop-up message, and that will redirect them to a website with information about the ban.

The law puts the requirement on TikTok service providers to stop doing business with it once the law comes into effect. That's the app stores, Apple, Google, and, of course, the cloud service provider as well. That is all a factor. People who want to download TikTok for the first time likely won't be able to. That's our understanding of what will happen on Sunday based on our reporting.

Brigid Bergin: I want to thank my guests. Sylvia Varnham O'Regan is a reporter covering social media companies for the tech news site The Information, and Emily Bazelon, staff writer for The New York Times Magazine, co-host of Slate's Political Gabfest podcast, Truman Capote fellow for creative writing and law at Yale Law School, and author of Charged: The New Movement to Transform American Prosecution and End Mass Incarceration. I want to thank all of our listeners, both TikTok users, TikTok's supporters and detractors.

We got a lot of text messages and a lot of calls that we couldn't get to in this breaking news segment. I want to just quickly note. A lot of our listeners have texted support for TikTok. "TikTok is the reason why Instagram has reels. It has changed social media." Also, it will be prominent in the inauguration. Lots more listeners. We hear you. We see you. We appreciate you. I want to thank our guests for coming on and hope to talk to you again soon.

Emily Bazelon: Thanks so much.

Sylvia Varnham O'Regan: Thank you.

 

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