The Lawfare Podcast: Matt Perault, Ramya Krishnan, and Alan Rozenshtein Talk About the TikTok Divestment and Ban Bill

[Audio Excerpt]

Ramya Krishnan

I'm very worried about giving that power to the U.S. government. I also worry about how that kind of precedent is going to be weaponized by authoritarian regimes around the world who can now point to that when they decide to take steps to restrict their citizens’ access to foreign media or ideas and information from abroad. I actually think that that would be a massive loss for free expression.

[Main Podcast]

Alan Rozenshtein

I'm Alan Rozenshtein, Associate Professor of Law at the University of Minnesota and Senior Editor at Lawfare. And this is the Lawfare Podcast for March 22nd, 2024. Today, we're bringing you an episode of Arbiters of Truth, our series on the information ecosystem.

Last week, the House of Representatives overwhelmingly passed a bill that would require ByteDance, the Chinese company that owns the popular social media app, TikTok, to divest its ownership in the platform or face TikTok being banned in the United States. Although prospects for the bill in the Senate remain uncertain, President Biden has said that he will sign the bill if it comes to his desk, and this is the most serious attempt yet to ban the controversial social media app.

Today's podcast is the latest in a series of conversations we've had about TikTok. Matt Perault, the Director of the Center on Technology Policy at the University of North Carolina at Chapel Hill, was in the hosting chair and led a conversation with me and Ramya Krishnan, a Senior Staff Attorney at the Knight First Amendment Institute at Columbia University. We spoke about the First Amendment implications of a TikTok ban, whether it's a good idea as a policy matter and how we should think about foreign ownership of platforms more generally.

A disclaimer, before we get started, MAT Center receives funding from foundations and tech companies, including funding from TikTok.

It's the Lawfare Podcast, March 22nd. Matt Perault, Ramya Krishnan, and I Talk about the TikTok Divestment and Ban Bill.

Matt Perault

Alan, maybe you can kick us off. How did we get here? What are the concerns related to TikTok?

Alan Rozenshtein

Sure. So, I think that there are two major buckets of concern. And it obviously depends on who specifically you ask and what the problems are, but I think with respect to TikTok specifically, not just social media, the two concerns that are most often cited are one, a data privacy concern, and two, I'll call it an information space concern. And actually let me back up for a second. The reason we're talking about TikTok in particular, and not other social media companies, is because TikTok is owned by ByteDance, and ByteDance is a Chinese company. And the reality is that in China, even companies that are nominally private, because of the authoritarian nature of the Chinese regime, are under a substantial amount of control, if not day to day, then at least potentially, by the Chinese Communist Party. And that's where this goes from a social media issue to a potential national security issue.

In terms of what those national security concerns are, again, one issue is around data privacy, and the concern there is that because of the hundreds of millions of users of TikTok, TikTok, like any social media company, is collecting a massive amount of information on its users. It's not obvious that it's collecting any more information than say, Facebook or Twitter or other social media platforms. But the difference is that in principle, that data could be accessed by the Chinese government. And so one concern around TikTok is just not wanting to give the Chinese yet another source of information on U.S. persons.

The other set of concerns is around the algorithm that TikTok uses and also the content moderation decisions that TikTok engages in. Again, content moderation is generally an extremely controversial issue. There's no platform that has a gold standard content moderation that everyone likes. For example, CEG, the NetChoice arguments that we recently had in the Supreme Court about just U.S. companies there. But the difference here, again, is because of the potential and control of TikTok by ByteDance, and then therefore by the Chinese Communist Party, there's a real concern that especially given how popular TikTok is among young people, given how much young people get their news from TikTok, for a lot of young people, it is in fact their main source of news, there's concern about given the Chinese Communist Party, the potential ability to affect what kind of news, what kind of information, what kind of information space that Americans and especially younger Americans get. Now, again, we'll talk about whether, to what extent this law is responsive to those concerns, but I think those are the two main issues from a policy perspective that are what people bring up when they talk about TikTok.

Matt Perault

Just in laying out the facts and the arguments, can we actually go a little deeper on one thing that you said, which is TikTok is owned by ByteDance and ByteDance is a Chinese company. Can we talk a little bit just about what the ownership of TikTok looks like? Because that feels like it's important to me. I think in the conversation around these issues, we often think about it as if there's one person in China who owns a hundred percent of this company. And then in theory, they could sell it to an American person who then would own a hundred percent of the company. But that's not the structure of companies of this size, right? So when you say in your characterization, it's a Chinese company, what do you mean by that?

Alan Rozenshtein

I think that's a really good point. The specific relationship between TikTok and ByteDance is actually quite complicated. It’s not as simple as TikTok just being a wholly owned subsidiary of ByteDance. ByteDance owns parts of it. Other investors own parts of it. TikTok is located in one country, ByteDance is in another country. There's also a complicated relationship between TikTok and ByteDance in terms of TikTok, or ByteDance, rather, licensing the algorithm that is at the center of a lot of controversy to TikTok itself.

And so one thing we can get into when we get into the specific law is what the threshold is foreign ownership and how that all supposed to work. I think that the key point to take away from here is though that it is nevertheless the case—or, let's put it this way. There are a lot of fears, and I don't think these fears are unfounded, that whatever the specific details of the corporate ownership of TikTok is, it exposes TikTok to a high degree of control by the Chinese government, a high enough degree of control as to raise the fears regarding data privacy and manipulation of the information space that I spoke about earlier.

Matt Perault

Okay. So Ramya, can you tell us a little bit about this specific legislative proposal? We've had you on the podcast a number of times to talk about various different attempts to restrict TikTok specifically, I think around the Montana ban. We talked before, after the ban was passed, before court considered it, then we talked to after the court considered it and upheld a preliminary injunction blocking the enactment of the law. So can you tell us a little bit about what this legislation does and why it's different?

Ramya Krishnan

Sure. The short answer is it's not that different. The bill requires TikTok's Chinese owner, ByteDance, to sell the app or face a ban. It also empowers the president to force the sale of other foreign adversary-controlled applications if he deems them to be a national security risk. The way the bill would work is this. It would prohibit app stores and web-hosting services from distributing TikTok, unless it completes what the bill calls a “qualified divestiture.” That is any transaction that is, per a presidential determination, ends the app's control by or coordination with a foreign adversary. The bill would give TikTok 180 days to complete this qualified divestiture, or the ban kicks in. The bill would also create a process for the president to designate other foreign adversary-controlled companies as subject to the bill, which means that apps owned by those companies would need to sever ties with their foreign owners or similarly face a ban.

In terms of how is this different or not so different, a lot of proponents of this bill have made a lot of the fact that this is just a forced divestment and that it is not correct to call it a ban. I've been pretty perplexed, to be honest, by the focus on the appropriate nomenclature here. The bill doesn't just say divest, it says “divest or be banned.” There are real obstacles to divestment, but even if we assume that divestment is practical, the fact that the bill uses the threat of divestment means that it is subject to, or should be subject to, stringent First Amendment scrutiny. But I do think it's worth dwelling on the fact that there are real reasons to worry that that threat will become a reality.

So number one, ByteDance might not be able to sell TikTok within the required timeframe of 180 days. Query how many companies have the spare cash on hand to buy a company as expensive as TikTok. Some of the biggest American tech companies might not want to purchase TikTok for fear of drawing the ire of antitrust regulators. The bigger question, probably, though, is whether China will, in fact, approve such a sale, or whether it will block a sale. And I think the latter is far more likely. It's important to remember that TikTok doesn't own the algorithms that it runs on, ByteDance does. Last year, when the Committee on Foreign Investment in the United States told ByteDance that they would have to divest TikTok or face a ban, China made very clear that it opposed a forced sale and that it would very likely not provide the approval that is required for the transfer of TikTok's algorithm. That very well could be a major obstacle to a sale here.

The other point worth noting is that even if China did approve the transfer of TikTok's algorithm, the president could theoretically block any sale under this bill the way that it is written. The bill provides that a qualified divestiture is one where the president determines that the covered company no longer is controlled by or have an operational relationship with its former owner. In other words, the president could block a sale even if ByteDance found a buyer. That's just a theoretical policy. It might not eventuate, but it's one worth noting.

Matt Perault

So can you talk about this issue of divestment versus ban in the context of the First Amendment analysis? TikTok was very quick to say, “This is a ban bill.” They were quick to say that and they emphasized it repeatedly. The bill sponsor said, “Of course it's not a ban, there's the option to divest.” Clearly the parties are already trying to negotiate that and make their case in public. Why does it matter for a First Amendment review if it's a divestment bill versus a ban bill?

Ramya Krishnan

I think it's probably more of rhetorical import instead of shaping public opinion on whether this bill is an overly heavy-handed response to concerns about TikTok or is an appropriate and sensible response. As a constitutional matter, I'm not sure that it matters that much. Generally speaking, the government can't do indirectly what it is forbidden from doing directly. And it is crystal clear that Americans have a First Amendment right to access information, ideas, media from abroad. The Supreme Court held that Americans have this right in a case from over half a century ago, a case called Lamont v. Postmaster General. That case, involved the Court striking down a law that required Americans who wanted to receive what the government considered to be communist propaganda from abroad to register with the postmaster general in order to receive that information. So to be clear, the law didn't ban Americans from receiving that information. But the Court considered the burden imposed by the law to create a sufficient deterrent effect that it violated the First Amendment.

And a bill banning TikTok or forcing it to divest on pain of a ban is considerably worse than the law at issue in Lamont. Not even the government argues that everything on TikTok is Chinese propaganda. It doesn't even argue that the Chinese government is currently hijacking TikTok's algorithm to promote disinformation. It only says that it could do that. And of course the bill doesn't just impose a registration requirement on those who want to access TikTok. There's a serious risk under this bill that it will be banned. So I think Lamont confirms that whether or not this bill is appropriately characterized as a ban or not, it imposes a sufficient enough burden on Americans’ First Amendment rights that it is an egregious First Amendment violation.

Matt Perault

So, Alan, what do you think about this issue, divestment versus a ban?

Alan Rozenshtein

Yeah, so just focusing on the specific question that you initially asked, which is does it really matter for First Amendment analysis, let me say two things. So first, I totally agree with Ramya that it's a little weird, this shadowboxing that's happening right now, is this a divestment or a ban? I mean, it's not a ban, it's a divestment, but with the real risk of a ban. So I think just that's the way you have to think about it, right? And I think the defenders of this bill have to--and I think they've been forthright about the possibility that this does end in a ban. They did, after all, write that in. So that's the first thought.

The second thought is, I do, however, though I agree with Ramya that the government can't do indirectly what it can't do directly. I do think there is still a difference between a straight ban and a divestment that might lead to a ban in the following sense. At some point, and we're going to talk about this, I'm sure, in depth when we talk about the appropriate standard, whatever the appropriate standard is, I think it's ultimately going to come down to how compelling is the government interest and how well tailored is this to achieve that interest, right? Ultimately, at the end of the day, it's not the case that every violation of one's free speech rights are unconstitutional. It's just the unconstitutional ones are unconstitutional. And so I think that when the government gets up and says, “Look, this is a real national security threat. This is the best thing we can do to fix it. And we're not going any farther than we need to. And one evidence of that is that we're not just banning it. We're opening, we're holding the door open for divestment that preserves TikTok.” And so I actually do think the government is in a stronger litigating position in creating a path to divestment rather than going straight to a ban.

Now, I'm not saying that the fact that there's a possibility of just divestment saves the bill. I think Ramya is totally right that the real risk of a ban is going to be an important part of the First Amendment analysis. But I do think the government is in a better position for having a divestment option than just going to a straight ban.

Matt Perault

Ramya, do you see it the same way? And I guess, Alan is getting us to the question of what is this level of scrutiny that applies? And assuming it is strict scrutiny, does this difference of divestment versus ban matter?

Ramya Krishnan

I don't think so. I'm 100 percent with Alan on let's get away from this focus on whether this is appropriately characterized as a forced sale or as a ban. Assuming that stringent First Amendment scrutiny applies, the question is really going to be, is this narrowly tailored enough to the government's objectives? And I think what's fatal here is that the ban isn't just unnecessary to achieve the government's purported objectives, it's ineffective as well.

So Alan mentioned two sets of concerns that are motivating this this bill. And I think for both sets of these concerns, the bill just doesn't do what the government wants it to do. So starting with data privacy it's true that TikTok collects a lot of information about Americans, but other social media companies and tech companies do too, and banning TikTok does nothing to stem that flow of data, while allowing China and other foreign adversaries to continue collecting sensitive information about us by purchasing it from data brokers and aggregators on the open market. So it doesn't really get us there in terms of protecting Americans’ privacy, I don't think.

And then on the disinformation side of things, here too, the problem of foreign government disinformation is not limited to TikTok. Any social media platform can be exploited by foreign powers who are interested in influencing Americans. Multiple foreign governments have run disinformation campaigns on American-based platforms. platforms, including Facebook, Twitter, Instagram. The paradigmatic example of a foreign disinformation campaign, I think, is Russia's election disinformation campaign from 2016, which was, again, run on American-owned platforms. So here too, I don't think banning TikTok really addresses or effectively addresses that concern. Now, it's true that some officials have said that their particular concern with TikTok, at least on this disinformation score, is that the CCP may be able to exploit TikTok's algorithm to promote disinformation. If the government has evidence to back that claim, it should share it with the American public. But speculation about what could happen in the future is not sufficient to justify such a broad infringement of First Amendment rights.

Matt Perault

Alan, I'm really curious about your views on the factual record that we have to date on harm and risk that we have with respect to TikTok. I agree with Ramya's analysis that just talking about speculation is problematic here. I think it's actually problematic with respect to almost any tech company because tech companies have the ability to do lots and lots of things that would be deeply problematic. I don't think looking at the possibility that they might would be sufficient in a case like this where you're really talking about restricting access to one particular company in one particular form of expression. But there's a lot of active debate now on whether the national security case has already been made. I've seen people just in reading analysis in the last few days, I've seen some people say, there's absolutely zero evidence of harm and other people saying it's conclusive, there's an obvious case of harm. In your view, how do you see it?

Alan Rozenshtein

So let me talk about that with respect to the two policy concerns. So a lot of interesting things about this, but one thing that's interesting is that I think the factual record has been established even stronger for the data privacy concern than for the information space concern. Although I actually agree with Ramya that the data privacy concern is by far the weaker of the two grounds on which to justify this law for exactly the reason that Ramya pointed out, which is that because we have such a porous data privacy regime, I'm not sure what the marginal benefit to the Chinese government is of access to TikTok from a data privacy perspective. Now, I'm actually very open to the government providing information about that. And I think that there are some cases, for example, with respect to Grindr and the issue around CFIUS requiring China to divest from that because of potential sensitive information China could gain. In that case, it was specifically about whether one was HIV positive or not, which was something that Grindr allowed you to report.

With respect to TikTok, it's less clear to me what the super sensitive data that China could only get through TikTok is. Though, of course, when we talk about whether China is willing to spy on the U.S., there, that factual record is beyond established, right? I as someone who worked in the federal government for several years before I became a law professor am the proud owner of two free lifetime credit monitoring subscriptions because China so thoroughly stole mine and 10 million other U.S. federal employees’ data. But again, I think because the data privacy issue, because I do think this law really doesn't necessarily advance the ball there, I really try to resist arguing about this law from that perspective, right?

I really think the far more interesting and far more compelling basis is the issue of not just Chinese propaganda--and I actually think that's the wrong way to think about it--, but Chinese control over a, I don't want to call it facially neutral, but over a very broad distribution network that is for many Americans one of, if not the main source of information, right? The issue is not, I think, banning the People's Daily from being read by people in the U.S. The concern is giving a foreign adversary control over an entire network of information.

Now, it still has to be established that there is, in fact, such a risk. And here the problem is there's a meta debate about what would count as sufficient evidence to take an action here. Now, I think that it has certainly been established that the Chinese government is--I mean, we can debate over the finer points of the definition of totalitarian--but certainly authoritarian, that is willing to and is quite tetchy about information, especially on sensitive issues, whether it's Tibet or the Uyghurs or Taiwan, and is more than willing to, and has historically thrown its weight around, to make its informational preferences known, right? Whether it's about Hollywood and how it has to deal with China, whether it's about the NBA. There are lots of examples of China being willing to throw its muscle around. So then the question is, okay, is China willing to control its companies, even nominally independent ones? I think, again, the answer is absolutely yes. Jack Ma, the founder and head of Alibaba, basically disappeared for several months after he criticized Chinese control over the Chinese tech sector and saw lots of parts of his company sold for pieces before he came back quite chastened and suddenly apolitical.

Okay, so can we use those two data points and other data points to conclude that there is a high risk that in either an extreme conflict like the United States and China go to war over Taiwan, or just at a steady state level, China would be willing to use its influence to modify how TikTok presents information to users? To me, I think that the chance is high enough. And what I'm trying to figure out is whether the critics of the law would accept anything other than evidence that China has already done this. I don't think that should be the standard here. I don't think that generally is the standard when we talk about these sorts of national security policies.

But of course, at the end of the day, it ultimately comes down to one's judgment and a value tradeoff between the very legitimate speech concerns that are implicated--though again, I think we should talk more about them because I think their speech concerns are not quite as straightforward as some of the critics of this bill would present them. But there are obviously speech concerns, and the real national security concerns. At the top, you asked Ramya to talk about, so what are the differences between this bill and some of the attempts to ban or limit TikTok, whether it's the Montana ban or the Trump ban. I think one difference here is that here you have Congress in, at least in the House, a pretty overwhelming and bipartisan way, we'll see what happens in the Senate if it survives, expressing its considered policy view at a national level, right, that the risk here is extremely high. I do think that is worth a considerable amount of deference, not total deference. Otherwise, we wouldn't have a First Amendment, but considerable deference.

And to me, at least this meets the bar for being a scary enough eventuality that, a potential ban of TikTok, and I think, again, we're right that that's the standard we should think about because that could be what happens, is worth it.

Matt Perault

But it sounds like, just to make sure that I have the right understanding here, it sounds like your view is that it is speculative risk. You think it's a high level of risk, but you concede that it's speculative. Is that right?

Alan Rozenshtein

Yes, I do concede that it is speculative.

Matt Perault

And so can we actually talk briefly about a couple of the instances that people have cited as evidence of harm over the last six to 12 months? So the one that I have continuously seen repeated is there was an incident of some number of TikTok employees, and I think TikTok conceded this and actually reported it, conducting some surveillance of journalists. And that got a lot of attention and has been cited as evidence of Chinese government interference in problematic ways. Maybe Ramya, I can go to you first on that, and then maybe to Alan. Ramya, do you think that undermines your case that there's not sufficient national security harm or risk here to justify congress's action?

Ramya Krishnan

No, not really. And I mean that was an egregious example of how the fact that not only TikTok, but a lot of these social media companies, collect so much information about us, makes us vulnerable to these kinds of attempts to spy by foreign governments. But I would just note that that risk, again, it's not just limited to TikTok. I think there are examples from other companies, for example, Twitter, where employees have gone rogue, reportedly at the instance of foreign authoritarian regimes, to exploit the special access that they have to data in order to spy on dissidents. So again, not a risk, I think, that is limited to TikTok.

And I think that legislators who are genuinely concerned about Americans’ privacy here have a number of other options at their disposal that would do a much better job of protecting Americans’ privacy. First on that list is obviously a comprehensive data privacy law. That kind of law would help us limit in the first instance how much data technology companies are able to collect about us.  It would limit the flow of data-to-data brokers and place real restrictions on their ability to then sell that data to other entities, including foreign adversaries, such as China. So I think to the extent that privacy is a concern here, the obvious solution is a data privacy law.

But there are a number of other things that Congress could do. It could require the companies to give more data to researchers, to make more information about the company's content moderation practices available to the public. It could impose a data portability and interoperability mandate that would make it easier for users of TikTok who want to leave the platform to leave the platform, but it would also make it easier to leave the other dominant social media platforms. So there are a number of things that I think a Congress that was really interested in addressing data privacy could do without burdening Americans’ First Amendment rights.

Alan Rozenshtein

So, the thing I just want to emphasize is, while I do appreciate Ramya's point that it's not as if TikTok is the only vector of disinformation and manipulation, totally true that you can do that on other social media platforms. I think there's a really important asymmetry, which is that unlike TikTok, the other social media platforms don't, at the end of the day, ultimately, have to be potentially answerable to the Chinese government, right? The whole point about disinformation on Facebook and Twitter and YouTube and whatever is that countries have to do it surreptitiously and the platforms can fight against that. That's just not true in the case of TikTok. That's the whole asymmetry, right? It's not that you can't do disinformation on other platforms, it's that the potential scale of disinformation and the inability to respond effectively to that risk is just much, much higher on any platform where they are functionally, in large part, controlled by a foreign adversary. And so I just think that's a really important asymmetry and why this is in fact a separate case.

Matt Perault

Alan, how much weight do you put on some of the incidents that have been in the press in the last several months?

Alan Rozenshtein

So, perhaps less than others do. I don't think it's actually, those aren't the incidents that make me particularly scared. Because, again, I agree with folks like Ramya who say that, look, you can have bad actors at TikTok spy on U.S. persons. You can have bad actors at Facebook spy on U.S. persons. I'm sure there are people at Facebook and YouTube and whatever who have disobeyed company policy. So that's not the thing that concerns me. The thing that concerns me is that at the end of the day, right, Facebook is not answerable to the Chinese Communist Party in a way that TikTok is. And so, while I concede that that's speculative in the sense that as far as we know, China has not yet exercised that influence on a broad scale, what's not speculative? And so maybe here, I'm going to go and revise my answer to you, Matt, where I actually don't think the case is speculative. What's not speculative is that China has the capability and has the means and the motives, and if the crisis was intense enough--or to put it this way, if China thought it could get enough of an advantage, it would, without question, use that opportunity, because what self-respecting nation state wouldn't?

Matt Perault

So we've talked around the issue of what level of scrutiny a court will apply here, and it seems to me like it might be material. We've seen other attempts to ban TikTok have gotten struck down just on intermediate scrutiny. But if strict scrutiny applies, then the government has to not just show narrow tailoring, but also least restrictive means. And Ramya, you've detailed a lot of alternative means that I think a court would have to wrestle with if strict scrutiny is applied. So I do think it's helpful to go a little bit deeper just on that question. What would determine whether a court applies intermediate or strict scrutiny here?

Ramya Krishnan

I think that there are a number of routes to getting to strict scrutiny. Your first among them is, I think that the fact that this bill uses the threat of a ban means that the Supreme Court's prior restraint cases are, I think, applicable here because banning TikTok or imposing a functional ban on TikTok is going to operate as a prior restraint, not only on TikTok's own speech, but much more importantly, the speech of TikTok's users. And there are over 150 million of them in the U.S. that use TikTok to express themselves and communicate and find news daily. So if this ban is characterized as a prior restraint, as I think it ought to be, that would be one route to strict scrutiny.

Whether or not strict scrutiny applies, I think an exacting scrutiny, which is something that is sort of in between intermediate and strict scrutiny, might apply here because TikTok is such a unique medium of communication. And there is Supreme Court case law to suggest that where the government acts to ban an entire medium of communication that exacting scrutiny applies and the government would need to show, for example, that it is leaving open ample alternative means of communication, which is difficult to do when you acknowledge that TikTok is not the same as any other social media platform, as any TikTok user will tell you. It's not fungible. It has particular affordances that other platforms don't have. It has an algorithm that other platforms don't have that I think makes it special to its users, and in particular young users.

But yet another route I think would get you to strict scrutiny or exacting scrutiny, which is that at least one of the purposes that the government has advanced here is content based. So this would be the government's desire to protect Americans from disinformation, whether that's China using TikTok's algorithm to push disinformation or to just spread disinformation on the platform. And when laws are motivated by a content-based purpose like that, courts will ordinarily subject that to the most stringent form of scrutiny, which would involve a least restrictive means analysis.

Matt Perault

Alan, I'm curious about how you see the nuts and bolts of the First Amendment analysis shaking out. I think that your view is pretty clear that you think there is risk that justifies this action, but it's a different question to say, and courts will uphold Congress taking this action. How do you think it's going to shake out?

Alan Rozenshtein

Yeah, so, I wish folks could see the video of this conversation because at some point all of us were trying to stifle laughter as we were going through this test because I think we all realize just how malleable and mushy and, frankly, underdetermined this is game of figure-out-exactly-what-level-of-scrutiny-and-how-you-apply-it and intermediate-plus strict-minus all that stuff.

I also think, maybe I shouldn't say this because I'm a constitutional law professor. So if any of my students are listening, close your ears. I'm very skeptical that at the Supreme Court, these questions matter of specifically what test that you are applying. I'm sure the lower courts, they do. But at the end of the day, this is such an important issue. This will 100 percent be decided by the Supreme Court. I mean, they have to decide this question. This is so fundamentally important. And at that point, this is such a novel issue that I actually don't think that trying to wordsmith the precise test is really going to matter here. At the end of the day, everyone is going to recognize that there are real First Amendment issues, and they're going to recognize that there are real national security issues, and it's just going to come down to how convincing does the Supreme Court--do five justices on the Supreme Court find the record and the deference that courts often pay to the political branches when it comes to national security determinations?

I can come up with an argument for all sorts of different scrutinies, right? Maybe there's a prior restraint argument. Maybe this an intermediate scrutiny, because really there's not a particular kind of content that we're necessarily trying to ban here. I'd also point out the fact that these sorts of foreign ownership requirements are not new to American law. They have a long pedigree in American law when it comes to control of platforms, whether it is other telecommunications medium, whether it is foreign involvement in U.S. elections, which I think raises very similar situations. In those cases, courts have very often allowed the government to restrict foreign participation without actually squinting too hard. Maybe that suggests that there's a lower level of scrutiny.

But at the same time, I could easily see Ramya's point that this should be viewed under strict scrutiny because maybe this is not just a content-based restriction, but it's a viewpoint-based restriction, the viewpoint, of course, being the concerns around the Chinese Communist Party. At the same time, of course, this is not a ban on views from the Chinese Communist Party, right? This is a ban on a particular kind of ownership of a platform, right? So maybe that changes the level of scrutiny here. My point is we can go around and around, but I think that, again, because this is a situation that's, I think, pretty sui generis and will ultimately be decided by the policymaking body formerly known as the Supreme Court, it's, I think, less helpful to focus on the doctrinal distinctions that generally have more play in the lower courts and just go directly to the policy considerations here, which are the First Amendment issues, whether there are alternative channels.

I think I disagree with Ramya that TikTok is that indispensable, right? I mean, if I was a, a teenager who had an obsessive TikTok, maybe I disagree. But the idea of short form content that is algorithmically curated is hardly a thing that only TikTok does. Literally every other platform social media platform is trying to replicate this. I think Instagram reels is doing a pretty good job, which of course raises the antitrust issues that we might talk about later. But again, I think just going straight to the competing values is more useful than trying to wordsmith the precise test.

Matt Perault

So let's take the bait there and leave the courts behind for a minute then. Alan, you worked on national security issues in the federal government. So you are familiar with how the government weighs these various different considerations. I'm curious, based on your experience and also your sense of what makes for good policy, do you think this process is the right one for addressing issues associated with TikTok? And we've had a lot of remedies be floated and then cast aside. We had the CFIUS process that we talked about a little bit earlier. There's a Commerce Department rule that can investigate and take action against certain foreign transactions. We had the RESTRICT Act proposed by Senators Warner and Thune. We had the company remedy, so TikTok proposing Project Texas, at least apparently in response to the CFIUS negotiations. So is this bill that Congress is, that the House has passed, and the Senate is now considering, is this good policy? Is this the right way to address these issues?

Alan Rozenshtein

I think this may be a case of it's better policy than any other process we could come up with. And what I mean by that is, this question of restricting foreign activity in the United States--forget the First Amendment context for a second--just this general question, right, of foreign activity in the United States, is one where traditionally we have, in particular, Congress has given a lot of deference to the president and to the executive branch. And so, as much as I've been talking about this as a  sui generis event, and in some sense it is, on the other hand, it's just another example of a standard technique that Congress uses, which is it gives the president certain authorities, it provides certain guidelines for those authorities, and then just trusts that the president, as diplomat in chief, as Commander in Chief, as the head of this large, sprawling national security and intelligence bureaucracy, will make the right call.

Now, is there any guarantee that they will make the right call? No. But at the end of the day, I'm not sure how else to do it in a way that both reflects the democratic process of the political branches, as well as the expertise of those branches, especially the president.

Matt Perault

But just push back on that for a second, isn't the CFIUS process designed for exactly this? That's the thing that I can't quite figure out. Like there's a CFIUS process initiated. It's reviewing national security risk related to an investment in an American technology. They're reviewing exactly these issues, the privacy issues and the content issues. Why isn't that the right vehicle for a remedy here?

Alan Rozenshtein

So, I think the issue is not so much that CFIUS couldn't necessarily do this job, it's that Congress is trying to signal that it views this as a very high priority and wants to create a fast track with no statutory ambiguity as to the president's ability to act on this matter. Right? So, I think that for whatever reason, Congress has decided that CFIUS is moving too slow or that there are some concerns whether or not CFIUS would have this authority, and so we're just going to make it extremely clear to the president that we think this is very, very concerning, and that you should have, without any legal ambiguity, the authority to do this, right? And then we'll just have to fight the constitutional issues, which, of course, you'd have to fight if this was done through CFIUS anyways.

Matt Perault

It just still feels like an odd result to me that CFIUS is--if this bill is passed and they take action against TikTok, then CFIUS will be the process that's used for foreign investment in the United States that has national security risk, except for the really, really important investments in the United States that have significant national security risk?

Alan Rozenshtein

Well, so the other thing that I would say is CFIUS is about investment in the United States. And it is true that TikTok falls under CFIUS because at some point TikTok bought I think a thing called Musical.ly, some American music thing. But of course, that's not the issue, right? The issue is a separate one, which is whether, even if TikTok had never invested anything in the United States, it was simply an incredibly popular application that was carried on the app stores. CFIUS would not have jurisdiction, I think, in that situation. And so, you would need an authority to do this. So, if you're thinking about this as more than just TikTok, right, for the next viral Chinese app, where they may not decide to do any investment in the United States, you should have a comprehensive regulatory regime. And this is Congress trying to do that.

Ramya Krishnan

I don't know if I have so much to say about CFIUS, but I guess I do want to respond to this idea that we, the U.S., quite regularly imposes restrictions on foreign control and ownership in other sectors and that social media platforms just shouldn't get a free pass. I think that the rules that operate in other sectors, first of all, apply to the entire sector. They also operate ex ante rather than after the fact. So, for example, in some sectors historically federal regulators have required companies to become licensed or charted before they can operate in the U.S., with approval being contingent on them complying with sectoral standards and perhaps having a U.S. subsidiary. Sometimes there are restrictions on foreign investment or even citizenship requirements. For instance, they might require that directors have American citizenship. And applying those kinds of rules across the board to the tech sector, to foreign tech, wouldn't necessarily implicate First Amendment concerns, in my view, although I think that the details would matter. But I do think that something that is very troubling about this bill is that it singles out TikTok and not only threatens divestment but does so on pain of a ban. That I think does make it quite different from the restrictions that fans of, say, public utility regulation have pointed to.

Alan Rozenshtein

Can I just push you on that for a second? Because I guess I'm not sure why there's that much of a distinction, right? [Now, arguing against myself for a second, I agree. It would be much better if we did all this ex-ante. It would be cleaner, totally fair, right? And maybe that's what we should do. But if you're going to prohibit foreign entities from owning means of communication in the United States, presumably you're doing that because you're worried about propaganda. You're worried about privacy, all of these things. That, to me, should implicate at least 80 percent of the First Amendment issues that a ban or a forced investment or whatever you want to call this does, right? Again, it's better to do things ex ante. But I guess it just seems, it just seems odd to me to say that this action poses such a First Amendment risk if you're willing to concede that excluding foreigners from U.S. platforms is totally okay under the First Amendment.

Ramya Krishnan

Well, I'm not willing to concede that excluding foreigners is totally okay with the First Amendment. And I think the restrictions that apply in other sectors actually fall quite a bit short of outright prohibiting foreigners from owning platforms, which I think would raise very significant First Amendment concerns as applied to communication platforms. To me, just as a policy matter, it seems I am very wary about giving the U.S. government, and the president in particular, the ability to ban a communications platform, an extraordinarily popular one at that. Simply on his say so that there is a national security risk, particularly when they have not made a case to the American public that that threat is real and not speculative. I'm very worried about giving that power to the U.S. government. I also worry about how that precedent is going to be weaponized by authoritarian regimes around the world who can now point to that when they decide to take steps to restrict their citizens’ access to foreign media or ideas and information from abroad. I actually think that that would be a massive loss for free expression.

Matt Perault

So where do you guys think we're going next? So bill came out of committee with a lot of momentum, passed the House decisively. Is it going anywhere from here? Is the Senate going to pass it? Alan, what do you think?

Alan Rozenshtein

I mean, no one pays me for my political prognostication. It certainly seems that it's received a much chillier reception in the Senate. I'm not sure that Chuck Schumer, the Senate Majority Leader, is that interested in this bill. And also, one thing we haven't talked about, because it's not legally relevant, but it's certainly interesting, is the truly bizarre U-turn on the part of former President Trump, who appears to have suddenly discovered the light and with all due respect to run his excellent argument and advocacy on this point, I don't think it's because of the profound First Amendment concerns that he has with this ban. I think it's because he talked to some hedge fund guy who invested a lot in TikTok and wants them as his donor. Again, not a legally relevant point, but given former president's control of the Republican Party, may actually make it just hard enough to cause this thing to stall and die in the Senate, especially on the eve of a very controversial election.

So it's completely possible that this thing goes nowhere. President Biden has said that he will sign it if it comes across his desk. I have no reason to think that he changed his mind on that. What happens then? And we've talked about how complicated, in part because of the corporate structure, a sale would be, the antitrust concerns. We don't have much time to get into that. But I do think it's possible that this does end up in a ban. I don't think that means that this bill is a ban only bill. But I do think that we should be clear eyed and that defenders of this bill and not just its critics should recognize that to support this bill is to be willing at some real probability that this will all end up in a ban, either because the sale falls through or China decides to take its ball and go home.

Matt Perault

Ramya, what do you think? Where does this go from here?

Ramya Krishnan

Yeah, I mean, I don't know that I have any more to add on its prospects of getting through the Senate, although I have read that if Senator Schumer sends this bill to committee, that is a surefire sign that the bill is dead. So I think that that's something to look for, to see whether the bill goes to committee. I mean, I think that there are other senators who have their own TikTok bills, ban bills. And so I'm not sure to what extent that factors into whether they're willing to jump ship to this new bill or whether they want to press for amendments. And I think that that's something that we just need to look out for, but I certainly hope that it dies in the Senate.

Matt Perault

Ramya, Alan, this is great. I keep thinking we're going to be done with this issue and then it keeps coming back. So I'm pretty sure we'll have a chance to chat about it again. Thank you, guys.

Ramya Krishnan

Thank you.

Matt Perault

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