Alan Rosenstein
Appearances
Fresh Air
The Looming TikTok Ban
At this point, to make a good algorithm, you need a big company with a lot of data and a ton of compute and a lot of good machine learning engineers, which Meta and Google all have. So I suspect that even if TikTok's algorithm is the best, it's not orders of magnitude better in the way that it might have been when TikTok first started.
Fresh Air
The Looming TikTok Ban
I mean, clearly, this is telling me that I need to get on TikTok if I'm a law professor, and there's a demand for these kinds of answers. No, again, there are many things that might be going on here. One, it might be that the algorithm is better. But the other thing that might be happening, and I think this is maybe more relevant to your original question, is
Fresh Air
The Looming TikTok Ban
The content on TikTok might be better, which is to say there may be more people on TikTok and they're, quote unquote, better people in the sense of creating content. But that is different than the algorithm and that can be sold. So what there is no Chinese law against is ByteDance selling TikTok without the algorithm. And that itself might be valuable enough.
Fresh Air
The Looming TikTok Ban
Now, it's not going to be as valuable as TikTok with the full algorithm. But it might still be quite valuable. And one could imagine a situation in which a U.S. company buys TikTok, which is to say it buys all its users, it buys all the content, it buys the network itself, minus the algorithm, and then replaces the algorithm with something else. Now, it won't be as good.
Fresh Air
The Looming TikTok Ban
But it probably will be good enough to keep the people on TikTok on TikTok. And because the algorithm is really based on the data, at some point, that new owner will have enough data to recreate something like the algorithm. But I would say that the deeper issue here is, yes, there is a law in China that prohibits the sale of the algorithm because it prohibits the export of Chinese technology.
Fresh Air
The Looming TikTok Ban
But we have to be realistic here. What's going to determine whether ByteDance sells TikTok is not Chinese law, but the Chinese government. We take for granted in the United States and in liberal democracies that a private company is a private company and that although it has to comply with the laws of the jurisdiction, it's still a private company. That's just not the case in China.
Fresh Air
The Looming TikTok Ban
It doesn't matter what the laws in China say. At the end of the day, China is an authoritarian police state. in which the Chinese government and specifically Xi Jinping, the head of China, decides all the important issues. So if Xi Jinping wants ByteDance to sell TikTok, ByteDance will sell TikTok. If Xi Jinping does not want it to, with or without the algorithm, ByteDance will not sell TikTok.
Fresh Air
The Looming TikTok Ban
But it's not a question fundamentally of Chinese law. It's a question of geopolitics. And so I think what Trump can do most productively if he wants to is not try to get a U.S. buyer, right? There are plenty of U.S. buyers lining up to do this. The problem was never getting a U.S. buyer.
Fresh Air
The Looming TikTok Ban
It's doing whatever diplomacy is necessary to do with Xi Jinping in order, if the law is upheld, for this transaction to go through. And the question is... Both one of desire on Trump's part, does he want to use his political capital in this way, especially since he likes to be seen as very tough on China and he's potentially preparing a whole trade war and tariff war with China?
Fresh Air
The Looming TikTok Ban
And then the other question is capacity. Can Trump do this, right? Can Trump do this kind of diplomacy?
Fresh Air
The Looming TikTok Ban
So a couple of points here. So the first is you're right. Some of the evidence is classified. We won't know that ever. So the government during the debates in Congress about the law. delivered a set of classified briefings to the House and the Senate. Some of these at least were very powerful.
Fresh Air
The Looming TikTok Ban
There was one famous example where I think the briefing was given to the House and a bunch of representatives walked into that briefing and they talked to journalists beforehand saying how skeptical they were of the law. And then they walk out of that briefing saying that they supported the law 100%. So clearly the government, the intelligence agencies and the FBI told Congress something.
Fresh Air
The Looming TikTok Ban
Similarly, during the litigation at the D.C. Circuit, the government submitted classified information that was only available to the judges and not to the litigants, to TikTok, and obviously not to the public. TikTok was very upset about this and wrote a brief asking the judges not to use this evidence.
Fresh Air
The Looming TikTok Ban
Notably, in the opinion, the judges explicitly said that they were not using that evidence, not because they objected to it, but because they didn't need to, that they were comfortable upholding the law based purely on what was in the public record. Which I think is notable. So what's in the public record? What do we know?
Fresh Air
The Looming TikTok Ban
On the one hand, what we don't have, and the government has never pretended actually to its credit, what we don't have is smoking gun evidence. We don't have evidence of the Chinese government... telling ByteDance to either collect US person data from TikTok and give it to the Chinese government, or to modify the algorithm so as to boost some pro-Chinese content.
Fresh Air
The Looming TikTok Ban
And these are the two concerns, data privacy and content manipulation. These are the two concerns that Congress cited when passing the law. So we don't have a smoking gun. But what we do have, I think, is everything short of that, right? We have a gun. It's on the table. It's loaded and it's pointed at us.
Fresh Air
The Looming TikTok Ban
And what I mean by that is we know, and there's years of evidence about this, that China has both the means and the motivations to carry this kind of behavior out.
Fresh Air
The Looming TikTok Ban
Yeah. Look, none of this is great. I want to emphasize this is not a good outcome. This is just a less bad outcome in the eyes of the government, at least in my estimation based on what I understand. But reasonable people very much can disagree here. I want to emphasize that. It's just a less bad outcome than the other outcomes.
Fresh Air
The Looming TikTok Ban
So the first thing the court has to decide is what to do. TikTok has asked the court to, in the meantime, pause the law so that it doesn't go into effect on January 19th. It made that application to Chief Justice John Roberts, who is in charge of... hearing these emergency motions from the D.C. Circuit, which is where TikTok lost the case earlier this year.
Fresh Air
The Looming TikTok Ban
With respect to John Oliver's point about data privacy, I would say the following. It is a mistake, and I don't think the government has justified this law in this way. If it has, it's been a mistake. The law is not justified as a general data privacy law. It is a data privacy law about the specific threat that China poses to the data privacy of Americans.
Fresh Air
The Looming TikTok Ban
That's different than a generalized data privacy concern. Now, we can have that. That's a very separate conversation, which we can have, about is it a good thing that DoorDash, as John Oliver says, has a picture of your small intestine, right? I don't love that either. But that's not the concern at issue here. The concern here is not just that someone has your data, right?
Fresh Air
The Looming TikTok Ban
The problem is that the Chinese government has your data, and the Chinese government is differently situated towards us and American interests, right? than a for-profit American company is. Now, should we have comprehensive data privacy legislation? Quite possibly.
Fresh Air
The Looming TikTok Ban
But that's just a separate conversation from the conversation here, which is about national security and data privacy, which is why even if you're against this law overall, I don't think you can just say, oh, well, TikTok is no different than any other data-hungry company. It's very different because it ultimately answers to Xi Jinping.
Fresh Air
The Looming TikTok Ban
And so it's likely that the chief justice will circulate that to his colleagues and they will decide whether or not to pause the law. Ultimately, they'll have to decide whether to take the case itself, to hear TikTok's appeal. And if they do that, then we probably won't know an answer ultimately until sometime in the summer.
Fresh Air
The Looming TikTok Ban
Yeah. So when it comes to the data, if you're just a normie American watching cat videos on TikTok, there's not a huge data concern. It's more for the millions of Americans that do have potentially sensitive positions in the government where their viewing history might tell whether Chinese intelligence agencies something useful about them.
Fresh Air
The Looming TikTok Ban
Now, it is true that other platforms have a lot of information about them, but those are other platforms and they're not controlled by the Chinese. Now, it's also true that those platforms can sell that data to third-party data brokers, and so the information can get to the Chinese government one way or the other.
Fresh Air
The Looming TikTok Ban
But it's actually notable, and this has, I think, been underreported, that simultaneously with the passage of the TikTok law, Congress also passed a law prohibiting the sale, including from data brokers, of information on Americans to countries like China. So Congress actually did try to tighten up the kind of leaky data pipeline.
Fresh Air
The Looming TikTok Ban
But it remains true that this law will not solve the data privacy problem, even with respect to China. But it's very rare that... Any piece of legislation can comprehensively solve an entire problem. The question is, can it make a meaningful difference in that problem? And is that marginal improvement worth the cost to free speech? That's the data privacy issue.
Fresh Air
The Looming TikTok Ban
On the content manipulation issue, I think the concern there is that, let's say the United States and China get into a shooting war over Taiwan, right? Right. Do we want a situation in which China then modifies the algorithm so that 170 million Americans, including many young Americans, many of whom get the bulk, if not virtually all of their news from TikTok.
Fresh Air
The Looming TikTok Ban
And people aren't reading the New York Times as much. They're tragically not listening to NPR as much, right? As much as I wish they would. I mean, a lot of them are just getting their news on TikTok. Do you want to wake up that morning and have their news feeds flooded with anti-American, anti-Taiwanese, pro-Chinese propaganda?
Fresh Air
The Looming TikTok Ban
So the government can ban the use of TikTok on government devices. And in fact, there are some states that have done this. I don't think that really poses many First Amendment problems. Of course, if the government tried to ban anyone working for the government from using TikTok, I mean, that's a lot of people. And that would actually raise its own First Amendment concerns.
Fresh Air
The Looming TikTok Ban
That would be quite similar to the concerns raised by the law more generally. And there's also a concern that even if you keep government users from using TikTok, if the family members of those users are using TikTok, a smart intelligence agency like the Chinese has can still glean a lot of information.
Fresh Air
The Looming TikTok Ban
And then when you take that and then you add the content manipulation concern, it just becomes a lot cleaner to ban the whole app.
Fresh Air
The Looming TikTok Ban
So Project Texas was this very elaborate and, as far as I can tell, quite well thought out and in good faith attempt to assuage some of the national security concerns.
Fresh Air
The Looming TikTok Ban
Because for years before this law was passed, TikTok was in negotiations with a government entity called CFIUS, the Committee on Foreign Investment in the United States, which deals with these national security issues when foreign entities invest in the United States and have a large U.S. presence.
Fresh Air
The Looming TikTok Ban
And as part of that, they came up with this elaborate plan that they called Project Texas, which, as you point out,
Fresh Air
The Looming TikTok Ban
would create sort of a special US-only Oracle cloud in which the US data would be held and actually which the algorithm would be held and that there'd be all these rules and procedures to separate TikTok from ByteDance and that there'd even be a board partially appointed by the US government that would oversee this.
Fresh Air
The Looming TikTok Ban
I don't think so. I mean, obviously, it's very difficult to predict and we really won't know until there's the briefing and then the oral argument and then really the decision. But I take the decision of the D.C. Circuit as a pretty good barometer for what the Supreme Court's going to do. The D.C. Circuit panel was three very distinguished, very well-respected judges.
Fresh Air
The Looming TikTok Ban
And so it's hard to know all the details of that and it's particularly hard to know how that would have actually played out in practice. The TikTok's position was that that would have assuaged all or nearly all of the government's concerns, and therefore something like a ban is unnecessary, especially given the First Amendment cost of that ban.
Fresh Air
The Looming TikTok Ban
The government's position, and this was something that Congress agreed with and also that the court agreed with, was that – there would still be too much of a residual risk because at the end of the day, right, unless you have an actual divestment, you still have TikTok being controlled by ByteDance. You still have the algorithm, even if it's
Fresh Air
The Looming TikTok Ban
in some sense, held in the United States, it's still getting, it's still being updated from China itself. And we know that because the whole problem that ByteDance is pointing out with the sale is that the Chinese won't let the algorithm fully exit the United States. And that even if you have a good system, it has to be monitored, right? You have to make sure there's no cheating involved.
Fresh Air
The Looming TikTok Ban
That's very hard to do, right? That would involve the government in this ongoing process of looking at this. And, you know, if what you're concerned about is In a real moment of international emergency, right? Again, the example I think of always is the US and China get into a shooting war with Taiwan.
Fresh Air
The Looming TikTok Ban
That no amount of procedures and corporate barriers will prevent the Chinese government from exercising control if it really wants to, short of an actual war. separation in which the Chinese government doesn't even have the capability of control. But it's ultimately a judgment call of how much risk are you willing to tolerate?
Fresh Air
The Looming TikTok Ban
Congress was not willing to tolerate essentially any risk, and the courts were not willing to overturn that judgment from Congress.
Fresh Air
The Looming TikTok Ban
I think TikTok, I don't have the exact numbers of how the 170 million American users stack up to the global TikTok user base. I think it's very important. I mean, America is a massive market always, but it's also such a culturally central market, right? I mean, if you want to be on a global platform and that platform does not have the United States, it's kind of not a global platform anymore.
Fresh Air
The Looming TikTok Ban
So while I suspect TikTok will, even if it's banned in the United States, even if it loses its presence in the United States, it will still continue to exist. It'll certainly be weakened. And the network effects of TikTok, and this is the idea that social media platforms exist. gain their value to their users in part because other users are using them.
Fresh Air
The Looming TikTok Ban
Those network effects will take a huge hit and will put TikTok not just in the United States, but also globally at a pretty profound competitive disadvantage relative to other competitors like Instagram Reels, like YouTube Shorts, that will include, in addition to other countries, the very important, the culturally very important user base of Americans.
Fresh Air
The Looming TikTok Ban
It was a cross-ideological panel. So you had a judge appointed by... Barack Obama, a judge appointed by Donald Trump, and then a judge appointed all the way back by Ronald Reagan. And these three judges ruled quite comprehensively against TikTok on basically all of the important issues. And so while the Supreme Court certainly is not going to defer to the D.C. Circuit, it's going to take the D.C.
Fresh Air
The Looming TikTok Ban
Circuit's view under consideration. And I think it's going to both use that as a signal Mm-hmm.
Fresh Air
The Looming TikTok Ban
So it's not entirely clear what happens. The law works by, although it targets TikTok, it applies to, as you pointed out, app stores like Apple and Google and also cloud service providers like Oracle. These are the actual servers on which TikTok runs in the United States, and that's provided by companies like Oracle. And so the ban applies to these kinds of companies.
Fresh Air
The Looming TikTok Ban
And so on January 19th, it becomes illegal for Apple to distribute the TikTok app on the App Store and it becomes illegal for Oracle, which is TikTok's U.S. cloud service provider, to provide services to TikTok. So what happens on January 19th? It could be that TikTok just goes dark in the United States and you just cannot access it.
Fresh Air
The Looming TikTok Ban
I think more likely what's going to happen is that if TikTok thinks that the ban is really going to go into effect, it will move its infrastructure outside of the United States to physical servers that are not in the United States. Now, that's actually a very tricky thing to do. TikTok is quite large.
Fresh Air
The Looming TikTok Ban
And so moving to a different cloud service provider is not a trivial thing, but they can probably make something work. And so on January 19th, it actually might be a seamless transition in the sense that if you already have TikTok on your phone, you may still be able to access it. But it might be quite a bit slower because now you're no longer accessing it in the United States.
Fresh Air
The Looming TikTok Ban
And also your app will not upgrade over time. So as TikTok rolls out new features, as it finds bug fixes, your app is just going to stay. And so, you know, I think that for the first day, week, month or two, It may be that TikTok users don't actually experience much, if at all, of a disruption. But the farther we get into the ban, the worse the TikTok experience is going to be.
Fresh Air
The Looming TikTok Ban
And I think the big worry for TikTok is that at some point, that experience will degrade sufficiently, that TikTok users will decide, hey, maybe I should look at one of the competitors like Instagram Reels or YouTube Shorts.
Fresh Air
The Looming TikTok Ban
Yeah, it's quite a wild story. So. Before he was against the TikTok ban, President Trump was very much for the TikTok ban and, in fact, tried to ban TikTok and WeChat, which is another Chinese-owned communications platform. And he tried to do that under his own authority.
Fresh Air
The Looming TikTok Ban
Basically, Congress has, over the last 50 years, given the president, really sweeping economic emergency powers to impose sanctions. sanctions and other kinds of economic measures in the interests of national security and foreign policy. And so using those powers, Trump actually tried to ban TikTok.
Fresh Air
The Looming TikTok Ban
Now, those bans, those attempted bans were challenged in court, and Trump actually lost all of those. But the that the statute that he was trying to use didn't give him that authority because the statute actually had an explicit carve out for communications platforms.
Fresh Air
The Looming TikTok Ban
So generally, the courts, with a few small exceptions, didn't reach the issue that is central to this case, which is what happens if Congress unambiguously tries to ban TikTok? Can it do that under the Constitution?
Fresh Air
The Looming TikTok Ban
So that's why those cases turned out the way they did and why, although previous bans of TikTok have failed in the courts, at least before this one, that really wasn't an indication of what was going to happen with this case because this case was done under a totally separate law.
Fresh Air
The Looming TikTok Ban
So the thing to keep in mind about this law is that, again, although it targets TikTok, the way it's enforced is not against TikTok directly, but against the app stores and the cloud service providers. And the reason that's important is because these are private companies, and they generally have the right to not do business with whomever they don't want to do business with.
Fresh Air
The Looming TikTok Ban
You can't force Apple to distribute the TikTok app. You can't force Oracle to provide cloud services to TikTok. And this is important because if Trump wants to help TikTok, and from that clip, it's not actually obvious that he does. But if he wants to help TikTok, the people he has to convince are the executives at Apple and Oracle.
Fresh Air
The Looming TikTok Ban
He has to convince the general counsel of Apple that when Apple CEO Tim Cook asks, well, should we continue to distribute the app? The general counsel says, yeah, I think that's OK. And so that's the audience. And so with that in mind, there are a couple of things he can do.
Fresh Air
The Looming TikTok Ban
One thing you could do, and this would be the most direct and most effective thing, would be to get Congress to repeal the law. Because if the law is repealed, then the law is repealed. Then there's no issue. The problem there is that it's going to be very hard to do that. The law was passed with overwhelming bipartisan support.
Fresh Air
The Looming TikTok Ban
I mean, it was essentially as bipartisan as anything gets in contemporary Washington. And although, of course, Trump has a really strong hold on the Republican Party, And maybe some Democrats don't love the idea of banning TikTok when they're hearing from their constituents. I am skeptical that Trump can get the votes, right? That even Trump has the political juice to get this thing done.
Fresh Air
The Looming TikTok Ban
And I think it really has to be one of the main things he spends his political capital on in his first 100 days. I'm just not convinced he wants to do that. So the second thing he could do is he could just declare that... the government is not going to enforce the law. So the law is enforced through primarily penalties on these companies.
Fresh Air
The Looming TikTok Ban
The attorney general goes and sues Apple and Oracle for violating the law up to $5,000 per user. And as you mentioned before, there are 170 million American users of TikTok. So that adds up to a lot of money very quickly.
Fresh Air
The Looming TikTok Ban
Absolutely. Right. And that is within his power. And no one could really challenge that decision. The problem is that Trump is very mercurial. He changes his mind frequently. He often seems to be basically acting based on whoever was the last person he talked to. So just because he directs the attorney general not to enforce the law, that doesn't make the law go away.
Fresh Air
The Looming TikTok Ban
Apple and Oracle would still be in a position of violating the law. And again, if you're the general counsel of Apple, and it's certainly if I was, I would feel very uncomfortable telling my CEO to go ahead with an action that could potentially open my company up to billions of dollars in liability based on liability.
Fresh Air
The Looming TikTok Ban
Some truth social post that Trump made directing future Attorney General Pam Bondi not to enforce the law. So I don't think that's going to be good enough. So the third thing Trump can do, and this is, I think, if he wants to help TikTok, this is probably how he's going to do it, is to just declare that the law no longer applies. And the reason he can do that is because the law...
Fresh Air
The Looming TikTok Ban
bans TikTok unless ByteDance, TikTok's Chinese owner, performs what the law calls a qualified divestiture, basically a qualified sale. And then the law also defines what a qualified divestiture is. And it says, qualified divestiture is when the president determines after an interagency process that, and then there's a bunch of language about what's supposed to actually happen.
Fresh Air
The Looming TikTok Ban
TikTok is no longer owned by ByteDance. TikTok is no longer owned or controlled by a Chinese entity and so on and so forth. But if you just focus on the first few words of that definition, the president determines, well, that does give the president some power.
Fresh Air
The Looming TikTok Ban
Now, one way you can read that is to say that the president gets some amount of discretion, maybe a little bit of discretion, maybe a lot of discretion to determine what counts as a qualified divestiture.
Fresh Air
The Looming TikTok Ban
And it's not clear who would be able to challenge that kind of determination, specifically, who would be able to challenge if Trump just declared that ByteDance has performed a qualified divestiture. And so there's a scenario in which... ByteDance could move some papers around, shift some assets from one corporation to another corporation, do some fancy legal work.
Fresh Air
The Looming TikTok Ban
And that would give Trump enough basically cover to declare that TikTok is no longer controlled by ByteDance. The question ultimately, however, is, is that going to be enough for the apples and oracles of the world to continue to do business with TikTok? And we just don't know the answer to that question.
Fresh Air
The Looming TikTok Ban
It's a great question. I think it would definitely have value. The question is how much value. So there's no question that TikTok became very popular because it had a better algorithm, right? ByteDance built a better mousetrap than the American social media companies when it came to short form video and the market rewarded them as the market ought to.
Fresh Air
The Looming TikTok Ban
At this point, it's actually not clear to me how much of the value of TikTok is in the algorithm and let's say how much better that algorithm is to the other comparable algorithms. Because, of course, Meta's TikTok competitor has its own algorithm. Google's TikTok competitor has its own algorithm. And all these algorithms, they're pretty similar.