Why Should Congress Give More Time to Explore ByteDance and How to Protect National Security? A Commentary on the US TikTok Appoach

Long Le, who teaches international business at Santa Clara University’s Leavey School of Business, laid out three scenarios for ByteDance. The least likely one is for the Chinese government to allow ByteDance to sell TikTok along with its algorithm. Another option is that the government refuses a sale altogether. They approve a sale of TikTok assets, but without the algorithm.

ByteDance could consider selling without its technology to avoid the controls, but that option might be limited. The Chinese government doesn’t really care about money in the way that a success story with an app would, even if it made billions.

The missing piece many members of the public have waited for is clear evidence of the kinds of risks to US TikTok users that lawmakers have seen in their classified briefings, especially since those briefings seem to have convinced them to vote for the bill. But the public has remained in the dark about the specifics of the national security risks that the intelligence community believes are generated by the app.

With the help of Tiktok, I believe congress should have done more to explore alternatives, build a better record, and push this point. “At the end of the day, though … I think the United States probably can get by by saying this is a rational, common sense policy decision that’s motivated by national security concerns. It is going to be a difficult thing for judges who aren’t experts to second guess.

He admits that it can also create a perverse incentive where the government can always scream national security and won’t be challenged.

The DC Circuit Court isn’t a bill of attainder, but a step towards a new law of equity based on the First Amendment

The DC Circuit Court has exclusive jurisdiction over many aspects of federal administrative law, such as immigration law. Dealing with challenges to the federal government is par for the course in this circuit. “This is a court that’s going to take the issue seriously and apply Supreme Court precedent in a serious way,” said Matt Schettenhelm, senior litigation analyst at Bloomberg Intelligence covering tech and telecom. “You won’t have the situation where maybe a judge could get this case and try to make a name for himself by writing a bold First Amendment decision, for example, that pushes the limits.”

The government has a weak point in its case, since it needs to show congress adequately explored alternatives that would have less impact on speech. “Often, the DC Circuit is asking, ‘Did the federal government or the agency take a hard look at the evidence in the record and use it properly?’” Schettenhelm said.

Courts tend to apply a greater level of deference to congressional actions, especially on national security — this is a much more weighty undertaking than the Trump administration’s attempt to enforce a ban via executive order.

The government can try to back up the idea that foreign ownership of influential media products can be difficult to stop in a First Amendment challenge.

While Schettenhelm sees the First Amendment claims as TikTok’s “best bet” in court, he anticipates the company will also claim the legislation is a bill of attainder, or a law that violates the Constitution by singling out an individual or company to punish them without due process. He thinks the argument will fail, noting that the DC Circuit Court upheld Congress’ decision to codify the prohibition against the company’s products in US information systems, due to concerns that the Russian government might gain access to US systems. The circuit court agreed with a lower court that it was not a bill of attainder since “the prohibition is not a punishment but a prophylaxis necessary to protect federal computer systems from Russian cyber-threats.”

If the Supreme Court decided to take up the case, the clock would stop and it would take at least another year or two to conclude the case. The Supreme Court might allow the government’s decision to stand, which could mean that ByteDance would need to act quickly to figure out if a sale is viable.

Since the case would start at the appeals court level, it could only go to the Supreme Court from there. The bill would require the president to see some progress in order to grant an additional 90-day extension, which would end in January.

Source: The legal challenges that lie ahead for TikTok — in both the US and China

What do the CEOs of ByteDance, TikTok, and CBP have to do about the Chinese government? A critical look at China’s technological Cold War

The executives of ByteDance aren’t able to go around the Chinese government. “The founders of ByteDance will come under heavy, heavy governmental scrutiny, including the possibility of criminal charges, given the nature of the Chinese legal system. I believe they are in a situation where they can’t offend Beijing in any way, but they have to comply with Beijing’s instructions.

Using export controls to limit the flow of proprietary technology is, of course, not unique to China. “China’s just borrowing a page from the American playbook of how to have a high degree of influence over how a China-based technology is exported and sold around the world,” Dong says.

He pointed to China as an example of this. “Their continuing support of Russia in the Ukraine war, despite the fact that their economy is going into a tailspin and American investment and American trade has been restricted, certainly indicates to the rest of the world and certainly to the United States that money is not the only motivation in terms of what drives our foreign policy and our domestic policy,” Dong said.

Although they are okay with ByteDance and TikTok making a lot of profit, they are not in an extreme way. Jack Ma, the founder of the Chinese e-tailer, retreated from public scrutiny after he criticized Chinese regulators, but has since re-emerged publicly. Alibaba is one of China’s most successful companies.

If the Chinese government does take action against some US businesses, that could lead to a dangerous game of brinkmanship. Le said that companies have to choose between sides in the US or China. “So you’re basically creating a tech Cold War.”

China usually responds with a response. Imagine if China told McDonald’s that the China operations should be 100 percent controlled by a Chinese entity. Otherwise, we’re gonna ban you from this country and force you to shut down all your outlets.’” Dong says American companies in China have known for a long time the risks of operating there and have likely developed plans to manage that risk or even scaled down their presence. The ramifications could be huge.

CBP’s questioning has also veered into more personal territory. According to Forbes, TikTok employees have been asked whether they are members of the Chinese Communist Party and have also been asked to provide information about their schooling and political connections in China. The source told Forbes that there was a printed list of questions the agents used to ask TikTok and ByteDance workers.

TikTok CEO Shou Chew has been subjected to similar questioning. During a congressional hearing in January, Sen. Tom Cotton (R-AR) repeatedly asked Chew — who is Singaporean — whether he was a member of the Chinese Communist Party.