Official Countdown to Tiktok being Banned in the US Thread

[ADevilYouKhow]

Driver’s Licenses, Addresses, Photos: Inside How TikTok Shares User Data

Employees of the Chinese-owned video app have regularly posted user information on a messaging and collaboration tool called Lark, according to internal documents.

www.nytimes.com

 

[bnew]

https://www.washingtonpost.com/technology/2023/09/15/tiktok-ban-us-negotiations/

TikTok and U.S. rekindle negotiations, boosting app’s hopes for survival​

Calls to ban the wildly popular app have faded ahead of the 2024 election​

By Drew Harwell

September 15, 2023 at 7:00 a.m. EDT

ByteDance is the parent company to TikTok, whose critics in Washington have warned is vulnerable to meddling by China’s surveillance state. (How Hwee Young/EPA-EFE/Shutterstock)

TikTok’s China-based parent company and the U.S. government are back at the negotiating table over the fate of the immensely popular video app in the United States.

The renewal comes six months after the Biden administration told ByteDance that it was done negotiating and that the Chinese company had basically two options: Sell TikTok or wait for Congress to pass a bill that could ban the app nationwide.


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Now, however, the talks have been revived amid doubts the administration has the authority to ban TikTok on its own and signs that a proposed law that would have given it more authority has stalled in Congress under fire from both the left and right.


The re-engagement also highlights politicians’ waning interest in facing public backlash by fighting a social media juggernaut that many Democrats, and a growing number of Republicans, hope could propel their chances during the 2024 election and beyond. The Republican presidential candidate Vivek Ramaswamy posted to X on Tuesday that he was joining TikTok, saying, “The fact is that many young voters are [using it] & we’re not going to change this country without winning.”


There’s been no official indication that the government’s position on calling for divestiture has changed. But teams from ByteDance and the Committee on Foreign Investment in the United States, which has oversight authority over the U.S. operations of foreign businesses, met last week at the Treasury Department in Washington to again walk through a proposal ByteDance made more than a year ago to assuage U.S. security concerns about TikTok. The meeting was confirmed by four people familiar with the matter who spoke on the condition of anonymity because they were not authorized to discuss the talks.

The Justice Department declined to comment. ByteDance did not respond to requests for comment. CFIUS, the White House and the Treasury Department also did not respond.


Negotiations over TikTok’s operations had been going on for nearly three years when the Biden administration delivered its ultimatum. Now CFIUS and ByteDance have renewed discussions centered on a sweeping plan ByteDance introduced last year under which the Chinese company would cede authority over TikTok’s U.S. operations to a three-person board whose members CFIUS would essentially select.


The broad contours of the plan have been known publicly since late last year, when TikTok began briefing lawmakers, researchers and journalists on what it had proposed. But a copy of the confidential draft agreement, reviewed by The Washington Post, shows the plan would grant the U.S. government unprecedented authority over a platform that claims 150 million users nationwide.

The provisions in the 90-page document, a version of which was first reported by Forbes, are far more restrictive than anything officials have ever sought over the company’s American peers, such as Facebook and Google, and would raise the risk that the government could subtly shape what TikTok users see — similar to what the app’s critics have warned of regarding influence from the Chinese state.


A subsidiary called TikTok U.S. Data Security, which would handle all of the app’s critical functions in the United States, including user data, engineering, security and content moderation, would be run by the CFIUS-approved board that would report solely to the federal government, not ByteDance.


CFIUS monitoring agencies, including the departments of Justice, Treasury and Defense, would have the right to access TikTok facilities at any time and overrule its policies or contracting decisions. CFIUS would also set the rules for all new company hires, including that they must be U.S. citizens, must consent to additional background checks and could be denied the job at any time.

All of the company’s internal changes to its source code and content-moderation playbook would be reported to the agencies on a routine basis, the proposal states, and the agencies could demand ByteDance “promptly alter” its source code to “ensure compliance” at any time. Source code sets the rules for a computer’s operation.


If the company does not say how it would implement the changes within three days or rejects the request outright, the TikTok U.S. subsidiary would be forced within two days to suspend the app for all U.S. users until it complied.


ByteDance said it has already implemented some measures of the $1.5 billion proposal, including shifting most of its 1,500 U.S. employees into the subsidiary and moving all U.S. user information into servers run by Oracle, the American tech giant.

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Under the agreement, Oracle and five other independent auditing firms would also be expected to monitor data flows in and out of TikTok’s U.S. subsidiary, review its source code, verify the deletion of old user data and ensure TikTok is complying with its part of the deal. The full agreement approving deep government involvement and extensive third-party auditing, however, has yet to be signed.


ByteDance submitted the proposal in August 2022 following years of negotiations with CFIUS, a secretive group that includes officials from nine federal agencies and reviews foreign-linked business deals for national security risks.


The Biden administration did not respond to the plan until March, when CFIUS told ByteDance the plan, known as Project Texas, would not proceed and that the company had few options but to sell its TikTok stake. At the same time, the White House announced its support for the Restrict Act, a bill led by Sens. Mark R. Warner (D-Va.) and John Thune (R-S.D.) that would give the government more power to limit or ban apps linked to foreign “adversary” countries.

The measure, which had been pitched as a way to unite TikTok’s critics, was instead widely criticized, with some Democrats saying the anti-TikTok push bolstered “Red Scare”-style “fearmongering” and some Republicans warning of any bill that would “give new open-ended authority to federal bureaucrats” or “emulate Chinese speech bans.”

In May, with the bill’s momentum fading, CFIUS officials sought another meeting with ByteDance attorneys to discuss technical ways to address the government’s concerns, signaling a path for the company to stay running without a forced sale, two people familiar with the discussions said. CFIUS requested another meeting last week to discuss how much of the plan had already been implemented.


Rachel Cohen, a Warner spokeswoman, said the senator continues to work toward passage of the legislation. “We need a comprehensive process for dealing with national security threats from foreign-based technology, rather than playing Whac-a-Mole attempting to tackle each new challenge as it pops up,” she said.

TikTok’s critics in Washington have warned that the company is vulnerable to meddling by China’s surveillance state, either by capturing U.S. user data or tampering with the recommendation algorithm that fills TikTok viewers’ feeds. But they have provided no evidence that such interference has taken place, and the company has repeatedly dismissed the claims.


TikTok’s critics have also said they’re unconvinced that the proposed agreement would go far enough, telling TikTok chief executive Shou Zi Chew during a five-hour hearing in March that no option but a full ban or forced sale would suffice.


Rep. Frank Pallone Jr. (D-N.J.) said he believed that, even if Project Texas were approved, “the Beijing communist government will still control and have the ability to influence what you do.” Rep. August Pfluger (R-Texas) also complained about its name, a reference to Oracle’s Texas headquarters: “We stand for freedom and transparency and we don’t want your project.”

Some lawmakers have said they’re still working on alternative approaches to regulate or block TikTok, but the discussion has largely faded from public view. Some agency officials have said they are focusing on bigger issues or policy debates and don’t want the responsibility of policing one of America’s most in-demand social media apps.


Recent committee hearings on CFIUS and China have barely touched on TikTok, focusing instead on issues related to semiconductors or real estate. Commerce Secretary Gina Raimondo did not discuss TikTok with Chinese officials during her recent widely watched trip to Beijing and Shanghai, and TikTok also was not mentioned when Republican presidential candidates met for their first debate last month.


The federal dealmaking with TikTok could be made more complex given an ongoing legal battle over how the government and social media giants interact. The Biden administration on Wednesday asked the Supreme Court to halt a lower court’s order blocking some federal agencies from working to “coerce or significantly encourage” the companies to remove posts with which it disagrees.

One official in a CFIUS member agency, who spoke on the condition of anonymity because they were not authorized to discuss internal positions, said they suspected the reengaged talks between CFIUS and ByteDance were likely fueled by political pressure from China hawks in Congress and would likely hit the same stalemate.
“We feel the need to say a bunch of stuff due to pressure from the Hill, but it’s not going anywhere,” the person said. “No one wants to bang on TikTok in an election year.”

Ellen Nakashima and Jeff Stein contributed to this report.

 

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The Billionaire Keeping TikTok on Phones in the U.S.

Financier Jeff Yass made a big bet on the app, and he’s a top donor to lawmakers who support it.

www.wsj.com

The Billionaire Keeping TikTok on Phones in the U.S.​

Financier Jeff Yass made a big bet on the app, and he’s a top donor to lawmakers who support it​

Jeff Yass owns a big stake in TikTok parent ByteDance and has worked to fend off a ban in the U.S. PHOTO ILLUSTRATION BY CAM POLLACK/WSJ; PHOTO BY EDDIE MALLUK


By John D. McKinnon
and Stu Woo

Sept. 20, 2023 12:01 am ET

WASHINGTON—TikTok had hardly any friends in government earlier this year as the Biden administration, Congress and state legislatures were threatening to ban the Chinese-owned video giant.


TikTok now has many more friends, with something in common: backing from billionaire financier Jeff Yass. They’ve helped stall attempts to outlaw America’s most-downloaded app.

Yass’s investment company, Susquehanna International Group, bet big on TikTok in 2012, buying a stake in parent company ByteDance now measured at about 15%. That translates into a personal stake for Yass of 7% in ByteDance. It is worth roughly $21 billion based on the company’s recent valuation, or much of his $28 billion net worth as gauged by Bloomberg.

Yass is also one of the top donors to the Club for Growth, an influential conservative group that rallied Republican opposition to a TikTok ban. Yass has donated $61 million to the Club for Growth’s political-spending arm since 2010, or about 24% of its total, according to federal records.

Club for Growth made public its opposition to banning TikTok in March, in an opinion article by its president, at a time when sentiment against the platform among segments of both parties was running high on Capitol Hill. Days later, Sen. Rand Paul (R., Ky.) stood up on the Senate floor and quashed an attempt to fast-track a bill by Sen. Josh Hawley (R., Mo.) to ban downloading of the TikTok app.
“We will be acting like the Chinese government if we ban TikTok here,” Paul said around that time.

In June, Yass donated $3 million to a political committee backing Paul. Including that contribution, Yass and his wife, Janine Yass, have donated more than $24 million to Paul or committees that support him since 2015, according to federal records. Club for Growth has given a Paul-supporting political committee $1.8 million since 2020.

Another Club for Growth-backed Republican who came out against a TikTok ban was Rep. Thomas Massie (R., Ky.), an important ally of House Speaker Kevin McCarthy. Massie urged House GOP leadership to oppose a different effort in the Senate, a bipartisan bill targeting TikTok that had the backing of the Biden administration, people familiar with the situation say.

Since 2020, Jeff and Janine Yass have given $32,200 to Massie or a political-action committee supporting him.

Club for Growth has been Massie’s biggest overall political contributor since 2011, directing $192,000 to him from the organization’s supporters, according to OpenSecrets, a nonpartisan group that tracks political contributions.

A spokesman for Massie said the congressman doesn’t like TikTok, but banning it wasn’t right because “the cure is worse than the disease.” A spokeswoman for Paul said his “opposition to censorship and his unwavering support for the First Amendment are consistent and deeply held libertarian beliefs.” Both libertarian-minded Republicans have broken party lines in the past to take hard-line stances on protecting free speech.

Rep. Thomas Massie came out against a TikTok ban. PHOTO: J. SCOTT APPLEWHITE/ASSOCIATED PRESS

Other Republicans in Congress, including at least five others besides Paul and Massie who received financial support from Club for Growth, have also objected to legislation targeting TikTok. With many Democrats already skeptical of a ban, the whittling away of Republican support killed momentum for several bills, including the bipartisan Restrict Act backed by the Biden administration.

The lobbying effort by Yass is notable in part because of the extent of his political spending—he and his wife were the third-largest conservative donors nationally in the 2022 election cycle, chipping in about $49 million to support conservative candidates and causes, according to OpenSecrets.

The investment Yass has been seeking to protect in Washington is both valuable and vulnerable. While much of the potential legislation could affect multiple companies, and many businesses including Chinese e-commerce giant
Alibaba Group
and Australian financial services firm
Macquarie Group
have been lobbying Congress to protect these interests, the laws would have an outsize effect on TikTok.

“I’ve supported libertarian and free market principles my entire adult life,” Yass said. “TikTok is about free speech and innovation, the epitome of libertarian and free market ideals. The idea of banning TikTok is an anathema to everything I believe.”

TikTok parent ByteDance often is described as the world’s most valuable startup—last year it valued itself at $300 billion when it bought back shares from existing investors. Its ultimate goal is to go public, most likely in Asia, and the value of its IPO would be badly damaged if TikTok were banned in the U.S.

Some leading Biden administration officials and Congress members say the Chinese government could order ByteDance to spy on American TikTok users, or determine what videos they watch. A spokeswoman for TikTok said the company wouldn’t comply with such a request and that it has proposed to the Biden administration a $1.5 billion plan to silo its U.S. operations from China.

TikTok’s own lobbying efforts in Washington have included hundreds of meetings and other contacts, according to a person familiar with the matter. One of its main arguments to Republicans has been that a majority of ByteDance’s shareholders are Americans, and some are well-connected conservatives, this person said.

Influence campaign​

The lobbying appears to have helped push House Republican lawmakers to back away from the idea of a ban on TikTok and focus instead on legislation that would put new legal protections in place for users’ personal data.
“One idea was to ban it, another idea was to protect the data,” McCarthy, the House speaker, said in an interview. “At one time, it looked like the ban was the most powerful, but now it looks like maybe this [is the] real solution…It’s like, I’m taking a different road to a different place, but we’re all going the same place.”

Hawley chalks the change up to the TikTok influence campaign. “TikTok and its dark-money cronies are spending vast amounts of money to kill these bills,” he said when asked about the role of Yass and Club for Growth in the debate over TikTok.

Along with backing GOP candidates who support its views, the Club for Growth often targets Republican incumbents who don’t agree with its priorities by supporting rivals in primary contests.

Some conservatives and libertarian members of Congress have traditionally rejected what they believe are intrusions by the government into free speech and how businesses operate, issues some have raised with the TikTok bills.

Others have also opposed the legislation, including media figures such as Tucker Carlson.

Club for Growth president David McIntosh, shown in 2017. He said individual Americans, not the government, should decide what content people can view. PHOTO: TOM WILLIAMS/CQ ROLL CALL/ZUMA PRESS

Club for Growth began making TikTok a priority around late 2022, when the U.S. government banned federal employees from using TikTok on work devices, said Club for Growth president David McIntosh.

McIntosh said the group started asking political candidates seeking Club for Growth’s financial support a new question: What’s your view on the TikTok ban?

As TikTok faced growing political risk, Yass consulted with Club for Growth periodically, asking which members of Congress would be willing to take a side on the issue, said McIntosh, a former Republican congressman from Indiana.

McIntosh wrote his opinion column without consulting Yass beforehand, he said, though he did show Yass the column after it was published on the Fox News website.
“He liked it,” McIntosh said.

Both Yass and Club for Growth oppose a TikTok ban because they say individual Americans, not the government, should decide what content people can view, McIntosh said.
“It’s a natural alignment of his libertarian philosophy, which is what he uses to direct his political giving,” McIntosh said of Yass. “It also aligns in this case with his financial interests.”

Sam Chen, a Pennsylvania-based Republican political consultant who has worked for some Yass-backed candidates, said Yass’s financial interests align with his philosophy of limited government.
“Jeffrey Yass is a libertarian,” Chen said. “He’s supporting people that vote this way. This is kind of how politics works.”

Tech startups​

The 65-year-old Yass, who grew up in Queens, N.Y., made his first riches when he and poker-playing buddies from the State University of New York at Binghamton found ways to tilt horse-racing odds in their favor.

The classmates went on to found Susquehanna. In the 1980s, the Philadelphia-area firm helped pioneer the use of quantitative models and computers to make rapid-fire trades for stock options and other securities.

Poker is central to Susquehanna’s approach. New hires train by playing Texas Hold’em, Yass told a podcast in 2020, where they learn to analyze probabilities and to size up their rivals. “The analogy between being a poker player and a trader—the same kind of decision-making theory—is very similar,” said Yass, who finished 12th in a World Series of Poker event in 2013.

More recently Susquehanna has moved into venture-capital and private-equity investments, including in Chinese tech startups.

Susquehanna invested $2.08 million in ByteDance in 2012, the year it was founded, and its funds have contributed hundreds of millions of dollars since, according to a lawsuit over compensation brought against Susquehanna by contractors who worked in China.

Besides ByteDance, Susquehanna’s Chinese office lists on its website nearly 400 other companies it has invested in. They include Home Inn, one of China’s largest budget hotel chains, and a variety of tech companies.

At Club for Growth, McIntosh said the question about the TikTok ban posed to candidates was designed to “suss out how they think about issues” and that Yass never insisted Club for Growth take a stand on TikTok. “Jeff would never direct the Club for Growth to take an action or a position on things,” said McIntosh. “But we naturally aligned on how we choose candidates.”

 

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ByteDance offices in Beijing. PHOTO: ANDREA VERDELLI/BLOOMBERG NEWS

Some Club-endorsed politicians, including Sen. Marco Rubio (R., Fla.), have strongly supported a TikTok ban.

Club for Growth also supports issues such as free trade, school choice and spending cuts.

Some GOP Congressional staffers took note of the Yass-TikTok connection this spring. “Club for Growth shilling for TikTok and what a coincidence that Jeff Yass is invested,” one staffer wrote in a text to others, seen by The Wall Street Journal.

Rep. Anna Paulina Luna (R., Fla.), who according to OpenSecrets received $61,000 from Club for Growth supporters for her 2022 election campaign, said she hasn’t discussed a TikTok ban with Yass or McIntosh. She said she supports a ban on TikTok but considers the Biden-backed Restrict Act to be government overreach. She said she prefers legislation that bans TikTok without giving officials broader powers.

Luna attributes the stalling of TikTok legislation to two factors: lawmakers who underestimate the national security risk of the Chinese-owned app, and lobbying by TikTok and its allies.

As calls for banning the social-media app grew louder earlier this year, TikTok hired top-flight political strategists and rallied the platform’s popular influencers to show members of Congress the app’s popularity.

U.S. companies with operations in China, which could be vulnerable to potential retaliation from Beijing if the U.S. moved against TikTok, also opposed a ban. Many other U.S. companies have a stake in TikTok’s continued operations, including Oracle, which hosts TikTok data on its cloud servers.

Rep. Anna Paulina Luna said she supports a ban on TikTok but considers the Biden-backed Restrict Act to be government overreach. PHOTO: ANNA MONEYMAKER/GETTY IMAGES

“There’s a lot of money [going into] keeping TikTok on people’s phones,” Luna said.

TikTok has disputed claims that user data could be turned over to the Chinese government ever since former President Donald Trump sought to ban the app in 2020, an effort blocked by two federal judges who ruled that Trump exceeded his authority.

TikTok later announced its $1.5 billion plan to further safeguard U.S. data, dubbing it “Project Texas” in a nod to the expanded role it meant for Austin-based
Oracle
. The plan is designed to protect the data of American users from China by storing it in a U.S.-based subsidiary operated by U.S.-government-approved employees and board directors.

Campaign trail​

The Treasury Department-led national-security panel called the Committee on Foreign Investment in the U.S. earlier this year ordered ByteDance to sell or face a ban, according to people familiar with the matter. ByteDance in recent weeks met with Cfius officials again to discuss its proposal to protect data, according to two people familiar with the matter.

The Biden administration hasn’t indicated any change in its effort to ban the app or force its sale. It could still try to use executive powers to ban it, or force a sale to remove Chinese control. But without legislation, analysts say those orders could be overturned in court, as shown by the Trump-era court rulings.

Such doubts helped trigger a range of legislative proposals such as the proposed Restrict Act by Sens. Mark Warner (D., Va.) and John Thune (R., S.D.), which would give the Commerce Secretary authority to ban information platforms owned by companies in adversarial countries such as China.

TikTok and its allies said the Restrict Act would give the government too much power—a point that dovetails with the libertarian ethos of Yass and Club for Growth.

Rep. Rick McCormick (R., Ga.), said he didn’t know Club for Growth opposed a TikTok ban when he received $115,000 from the group’s supporters, according to OpenSecrets, for his 2022 campaign. But he said the group’s position is “very much consistent with my worldview.”
“It’s a dangerous precedent to start telling society what they can or can’t access, even if it’s detrimental,” he said. “Communist countries do that.”

Other Club for Growth-backed House Republicans who oppose the Warner-Thune bill include Harriet Hageman (R., Wyo.) and Barry Moore (R., Ala.).

Hageman said she has concerns about TikTok but that she opposed the Warner-Thune bill because of “overreach and constitutionality issues” that would enable more censorship of free speech. Moore said the legislation “poses a threat to the First Amendment rights of law-abiding citizens.”

Sen. John Thune and Sen. Mark Warner proposed the Restrict Act, which would give the Commerce Secretary authority to ban information platforms owned by companies in adversarial countries such as China. PHOTO: CHIP SOMODEVILLA/GETTY IMAGES

More recent proposals still under development on Capitol Hill have scaled back the powers the government could wield against platforms such as TikTok compared with the Restrict Act, but would still allow for forced divestment of companies that pose an undue national-security risk, according to a draft of the Senate Commerce Committee plan.

The debate over banning TikTok has also surfaced on the GOP presidential primary campaign trail. The candidates Yass has backed—Florida Gov. Ron DeSantis and Sen. Tim Scott of South Carolina—both share his support for school choice and other issues. They have also taken a measured approach on TikTok compared with Trump. Representatives for Trump didn’t respond to a request for comment.

Yass gave a committee backing DeSantis $100,000 in February 2022, then added $2.5 million a year later.

DeSantis signed a bill to ban TikTok on state-issued devices in May, months after 21 other GOP governors had approved similar bans during a six-week period from last November to January.

Sen. Tim Scott is alone among leading GOP presidential primary candidates in not advocating for a TikTok ban. PHOTO: SCOTT OLSON/GETTY IMAGES

In July, DeSantis said he would weigh a nationwide ban of TikTok if elected president.

That came after Yass donated a total of $600,000 between March and June to a political committee backing Scott.

Scott is alone among leading GOP presidential primary candidates in not advocating for a TikTok ban, although he has said he thinks it’s best to separate the data of American users from China.

The DeSantis campaign didn’t respond to requests for comment. A spokesman for the Scott campaign said the candidate has consistently fought for tougher action against China.

Brody Mullins and Raffaele Huang contributed to this article.

 

[Adeptus Astartes]

 

[ADevilYouKhow]

U.S. Sues TikTok Over Child Privacy Violations

The Justice Department said TikTok illegally collected children’s data and knowingly allowed users under the age of 13 to create accounts.

www.nytimes.com

 

[ORDER_66]

shyt not banned yet???

 

[CrimsonTider]

shyt not banned yet???

It’s never going to be banned

 

[bnew]

US can’t ban TikTok for security reasons while ignoring Temu, other apps, TikTok argues

TikTok's survival in the US may depend on an appeals court ruling this December.

arstechnica.com

"Something else is at play" —​

US can’t ban TikTok for security reasons while ignoring Temu, other apps, TikTok argues​

TikTok's survival in the US may depend on an appeals court ruling this December.​

Ashley Belanger - 9/16/2024, 5:23 PM

Enlarge / Andrew J. Pincus, attorney for TikTok and ByteDance, leaves the E. Barrett Prettyman US Court House with members of his legal team as the US Court of Appeals hears oral arguments in the case TikTok Inc. v. Merrick Garland on September 16 in Washington, DC.
Kevin Dietsch / Staff | Getty Images News

reader comments​

136

The fight to keep TikTok operating unchanged in the US reached an appeals court Monday, where TikTok and US-based creators teamed up to defend one of the world's most popular apps from a potential US ban.

TikTok lawyer Andrew Pincus kicked things off by warning a three-judge panel that a law targeting foreign adversaries that requires TikTok to divest from its allegedly China-controlled owner, ByteDance, is "unprecedented" and could have "staggering" effects on "the speech of 170 million Americans."

Pincus argued that the US government was "for the first time in history" attempting to ban speech by a specific US speaker—namely, TikTok US, the US-based entity that allegedly curates the content that Americans see on the app.

The government justified the law by claiming that TikTok may in the future pose a national security risk because updates to the app's source code occur in China. Essentially, the US is concerned that TikTok collecting data in the US makes it possible for the Chinese government to both spy on Americans and influence Americans by manipulating TikTok content.

But Pincus argued that there's no evidence of that, only the FBI warning "about the potential that the Chinese Communist Party could use TikTok to threaten US homeland security, censor dissidents, and spread its malign influence on US soil." And because the law carves out China-owned and controlled e-commerce apps like Temu and Shein—which a US commission deemed a possible danger and allegedly process even more sensitive data than TikTok—the national security justification for targeting TikTok is seemingly so under-inclusive as to be fatal to the government's argument, Pincus argued.

Jeffrey Fisher, a lawyer for TikTok creators, agreed, warning the panel that "what the Supreme Court tells us when it comes to under-inclusive arguments is [that they're] often a signal that something else is at play."

Daniel Tenny, a lawyer representing the US government, defended Congress' motivations for passing the law, explaining that the data TikTok collects is "extremely valuable to a foreign adversary trying to compromise the security" of the US. He further argued that a foreign adversary controlling "what content is shown to Americans" is just as problematic.

Rather than targeting Americans' expression on the app, Tenny argued that because ByteDance controls TikTok's source code, the speech on TikTok is not American speech but "expression by Chinese engineers in China." This is the "core point" that the US hopes the appeals court will embrace, that as long as ByteDance oversees TikTok's source code, the US will have justified concerns about TikTok data security and content manipulation. The only solution, the US government argues, is divestment.

TikTok has long argued that divestment isn't an option and that the law will force a ban. Pincus told the court that the "critical issue" with the US government's case is that the US does not have any evidence that TikTok US is under Chinese control. Because the US is only concerned about some "future Chinese control," the burden that the law places on speech must meet the highest standard of constitutional scrutiny. Any finding otherwise, Pincus warned the court, risked turning the First Amendment "on its head," potentially allowing the government to point to foreign ownership to justify regulating US speech on any platform.

But as the panel explained, the US government had tried for two years to negotiate with ByteDance and find through Project Texas a way to maintain TikTok in the US while avoiding national security concerns. Because every attempt to find a suitable national security arrangement has seemingly failed, Congress was potentially justified in passing the law, the panel suggested, especially if the court rules that the law is really just trying to address foreign ownership—not regulate content. And even though the law currently only targets TikTok directly, the government could argue that's seemingly because TikTok is so far the only foreign adversary-controlled company flagged as a potential national security risk, the panel suggested.

TikTok insisted that divestment is not the answer and that Congress has made no effort to find a better solution. Pincus argued that the US did not consider less restrictive means for achieving the law's objectives without burdening speech on TikTok, such as a disclosure mechanism that could prevent covert influence on the app by a foreign adversary.

But US circuit judge Neomi Rao pushed back on this, suggesting that disclosure maybe isn't "always" the only appropriate mechanism to block propaganda in the US—especially when the US government has no way to quickly assess constantly updated TikTok source code developed in China. Pincus had confirmed that any covert content manipulation uncovered on the app would only be discovered after users were exposed.

"They say it would take three years to just review the existing code," Rao said. "How are you supposed to have disclosure in that circumstance?"

"I think disclosure has been the historic answer for covert content manipulation," Pincus told the court, branding the current law as "unusual" for targeting TikTok and asking the court to overturn the alleged ban.

The government has given ByteDance until mid-January to sell TikTok, or else the app risks being banned in the US. The appeals court is expected to rule by early December.

TikTok is not like other apps, creators argued​

The court pushed back on Pincus' characterization of the law as unconstitutionally targeting TikTok US, suggesting that no speech would seemingly be burdened if TikTok continued operating after divestiture from Chinese-controlled ownership. Theoretically, users could continue using the app as they had before, the panel suggested.

In response, Pincus argued that divestiture is impossible.

"This isn't just about divestiture," Pincus told the court. "This is about a ban."

But even if divestiture were somehow possible, Pincus argued that requiring it would still burden speech because altering TikTok's algorithm would make the content different for users.

Fisher similarly argued that there is no interchangeable platform for TikTok users and that users voluntarily choose to share data with TikTok. He cited one client, a TikTok user with millions of followers, with fewer than 100 followers on YouTube. That user quickly learned that not only are the audiences on other platforms vastly different, Fisher argued, but so are the creator tools, which means "the nature of the speech is different" on TikTok.

Defending Americans choosing TikTok above other platforms, Fisher said that Americans have a "fundamental interest" in working with the publisher or editor of their choice, which Congress is allegedly trying to take away. Because the law is allegedly motivated to suppress expression, Fisher said that there is no way for the US government to argue around the First Amendment successfully. Law professors have previously suggested that TikTok's First Amendment case is strong.

"American speakers are silenced" or "consistently affected by this law, so you can't get out of the First Amendment problem," Fisher argued. "Even in a world where you're dealing with totally unprotected speech," if the government is "choosing, selecting, and suppressing some speech based on viewpoint, but not another," the law requires strict constitutional scrutiny, Fisher argued, which the law allegedly cannot survive.

Tenny responded by saying that it's still unclear what ByteDance would actually do if the law is enforced. ByteDance could "have a change of heart," Tenny suggested, and sell off TikTok US. He also argued that if ByteDance was shut down due to some other violation, like tax fraud, TikTok creators would not be able to raise a First Amendment challenge.

Judges ask: What about in war times?​

It's unclear which side the panel found more persuasive. Throughout the hearing, the panel raised several hypotheticals to weigh both sides' arguments, perhaps most notably pondering if the law's provisions would potentially be permissible in war times.

Pincus conceded that perhaps if China and the US were at war, the US might be able to justify a law burdening speech, but the same issues with the law's under-inclusivity would arise in that heightened scenario. Fisher agreed that he could "imagine" that the law could escape strict constitutional scrutiny in "the heat of war" but reminded the panel that "we're not at war."

"The government still has to come in and explain in reasonable terms why it singled out one particular collector of data and excluded everybody else," Fisher suggested.