\n<\/p>\n
Its name is a mouthful, but no one who stops to read the text<\/a> of the Protecting Americans From Foreign Adversary Controlled Applications Act, which Congress and President Joe Biden<\/strong> codified as law last year, can have any doubts that its purpose was to give TikTok and its foreign owners an ultimatum: sell the wildly popular app to a US-based company, or cease operations in the country by a certain date. Can the government do that? That the date happens to be the last full day of the sitting president\u2019s term is the cherry on top\u2014as if the political branches decided that the stakes of keeping the US version of TikTok under the control of the Chinese government were too high to leave to the whims of the electorate.<\/p>\n There was prescience to that legislative choice. Because now that Donald Trump<\/strong> is the president-elect, and the new Congress has made it clear that he cannot have \u201cone big, beautiful bill<\/a>\u201d to fund his tax cuts and<\/em> an expansion of the deportation machine he\u2019d like to set in motion, there\u2019s simply no telling how the incoming commander in chief plans to deal with the bipartisan<\/a> consensus<\/a> that TikTok\u2019s days are numbered\u2014unless and until the People\u2019s Republic of China gives it up to a suitable bidder. That won\u2019t be happening: China has reportedly all but chosen a US shutdown<\/a> if all else fails.<\/p>\n The so-called TikTok ban, which goes into effect in 10 days, is now in the hands of the conservative-majority Supreme Court, which has its own history of moving whichever way the wind blows. Right before the holidays, the justices agreed to fast-track<\/a> a last-ditch effort by TikTok and Chinese-controlled tech giant ByteDance, plus a group of content creators, to put a freeze on the divestment-or-banishment law. Their main<\/a> and only argument is that the First Amendment to the Constitution stands in the way of the US government shutting down a platform that some 170 million users rely on for disseminating and consuming news, entertainment, culture, and so much more. Congress shall make no law<\/a> abridging the sharing of these things, they say.<\/p>\n Or can it? The past, present, and future solicitors general of the United States\u2014the title given to the government\u2019s top Supreme Court lawyer\u2014all have different conceptions of this question and how the case should shake out. For their part, TikTok and ByteDance turned to Noel Francisco,<\/strong> Trump\u2019s former solicitor general<\/a> and a key defender of everything from his Muslim-targeted travel ban to the failed attempts to kill the Affordable Care Act<\/a> and protections for Dreamers<\/a>. In Francisco and his team\u2019s view<\/a>, Congress is \u201csilencing a speech platform used by half the country,\u201d and thus its ban must be subject to the highest form<\/a> of judicial scrutiny\u2014the kind that almost no government action can survive.<\/p>\n To make this case, the company more or less argues that it should be treated like an American publisher making editorial choices\u2014and that its powerful algorithm, the one that determines the dance videos or TikTok challenges that appear in a user\u2019s feed, is akin to a newspaper deciding on the articles to put in front of readers. \u201cIf the Washington Post<\/em> used an algorithm to email its subscribers op-eds based exclusively on predicted subscriber preferences, that would be an editorial choice\u2014a decision to target readers with content they likely want, rather than what editors think they should read,\u201d Francisco writes<\/a> in a legal brief. \u201cThe First Amendment fully protects such editorial choices.\u201d<\/p>\n TikTok must really like the Post<\/em> analogy, if not the paper\u2019s place<\/a> in the national discourse, because later on in the same brief, Francisco floats a hypothetical in which Congress tries to make Jeff Bezos<\/strong> sell the newspaper because lawmakers fear that the breadth of his transnational business entanglements might lead foreign adversaries to pressure him to steer the journalism in ways favorable to them. \u201cThat law would obviously burden his First Amendment rights,\u201d Francisco adds.<\/p>\n The current solicitor general<\/a>, Elizabeth Prelogar,<\/strong> who will be out of a job by noon on Inauguration Day, will get one last chance to make an impression about where the power lies. Her brief<\/a>, like others from her tenure, presents a maximalist view of Congress and the president\u2019s prerogative to safeguard national security. And an order to divest, in this realm, has nothing to do with the First Amendment. \u201cCongress and the Executive Branch determined that ByteDance\u2019s ownership and control of TikTok pose an unacceptable threat to national security,\u201d she writes, \u201cbecause that relationship could permit a foreign adversary government to collect intelligence on and manipulate the content received by TikTok\u2019s American users, even if those harms had not yet materialized.\u201d<\/p>\n The government\u2019s two rationales for the legislation\u2014the threat of data mining and spying<\/a> by a foreign adversary and the potential manipulation of content in ways that could sway US users\u2014are not merely academic. That TikTok isn\u2019t allowed<\/a> in China,<\/em> of all places, is potent evidence that ByteDance is well aware of the app\u2019s power to persuade people with content that only ByteDance\u2019s closely guarded algorithm knows how to curate. That is, ByteDance demands freedom of expression here but not at home. (The company does operate a TikTok-like alternative, Douyin, in China.) As the US welcomes a new presidential administration that is already floating a new world order<\/a>, it is not hard to imagine a future<\/a> in which China leans on TikTok to protect its interests here and abroad.<\/p>\n<\/div>\n