TikTok ban

TikTok loses Supreme Court fight, prepares to shut down Sunday

bytedance, china, Donald Trump, First Amendment, free speech, national security, Online speech, Policy, SCOTUS, Supreme Court, tiktok, TikTok ban / Paul Patrick / January 17, 2025

TikTok has said it’s preparing to shut down Sunday.

A TikTok influencer holds a sign that reads “Keep TikTok” outside the US Supreme Court Building as the court hears oral arguments on whether to overturn or delay a law that could lead to a ban of TikTok in the U.S., on January 10, 2025 in Washington, DC. Credit: Kayla Bartkowski / Stringer | Getty Images News

TikTok has lost its Supreme Court appeal in a 9–0 decision and will likely shut down on January 19, a day before Donald Trump’s inauguration, unless the app can be sold before the deadline, which TikTok has said is impossible.

During the trial last Friday, TikTok lawyer Noel Francisco warned SCOTUS that upholding the Biden administration’s divest-or-sell law would likely cause TikTok to “go dark—essentially the platform shuts down” and “essentially… stop operating.” On Wednesday, TikTok reportedly began preparing to shut down the app for all US users, anticipating the loss.

But TikTok’s claims that the divest-or-sell law violated Americans’ free speech rights did not supersede the government’s compelling national security interest in blocking a foreign adversary like China from potentially using the app to spy on or influence Americans, SCOTUS ruled.

“We conclude that the challenged provisions do not violate petitioners’ First Amendment rights,” the SCOTUS opinion said, while acknowledging that “there is no doubt that, for more than 170 million Americans, TikTok offers a distinctive and expansive outlet for expression, means of engagement, and source of community.”

Late last year, TikTok and its owner, the Chinese-owned company ByteDance, urgently pushed SCOTUS to intervene before the law’s January 19 enforcement date. Ahead of SCOTUS’ decision, TikTok warned it would have no choice but to abruptly shut down a thriving platform where many Americans get their news, express their views, and make a living.

The US had argued the law was necessary to protect national security interests as the US-China trade war intensifies, alleging that China could use the app to track and influence TikTok’s 170 million American users. A lower court had agreed that the US had a compelling national security interest and rejected arguments that the law violated the First Amendment, triggering TikTok’s appeal to SCOTUS. Today, the Supreme Court upheld that ruling.

According to SCOTUS, the divest-or-sell law is “content-neutral” and only triggers intermediate scrutiny. That requires that the law doesn’t burden “substantially more speech than necessary” to serve the government’s national security interests, rather than strict scrutiny which would force the government to protect those interests through the least restrictive means.

Further, the government was right to single TikTok out, SCOTUS wrote, due to its “scale and susceptibility to foreign adversary control, together with the vast swaths of sensitive data the platform collects.”

“Preventing China from collecting vast amounts of sensitive data from 170 million US TikTok users” is a “decidedly content agnostic” rationale, justices wrote.

“The Government had good reason to single out TikTok for special treatment,” the opinion said.

TikTok CEO Shou Zi Chew posted a statement on TikTok reacting to the ruling, thanking Trump for committing to “work with TikTok” to avoid a shut down and telling users to “rest assured, we will do everything in our power to ensure our platform thrives” in the US.

Momentum to ban TikTok has shifted

First Amendment advocates condemned the SCOTUS ruling. The American Civil Liberties Union called it a “major blow to freedom of expression online,” and the Electronic Frontier Foundation’s civil liberties director David Greene accused justices of sweeping “past the undisputed content-based justification for the law” to “rule only based on the shaky data privacy concerns.”

While the SCOTUS ruling was unanimous, justice Sonia Sotomayor said that “precedent leaves no doubt” that the law implicated the First Amendment and “plainly” imposed a burden on any US company that distributes TikTok’s speech and any content creator who preferred TikTok as a publisher of their speech.

Similarly concerned was justice Neil Gorsuch, who wrote in his concurring opinion that he harbors “serious reservations about whether the law before us is ‘content neutral’ and thus escapes ‘strict scrutiny.'” Gorsuch also said he didn’t know “whether this law will succeed in achieving its ends.”

“But the question we face today is not the law’s wisdom, only its constitutionality,” Gorsuch wrote. “Given just a handful of days after oral argument to issue an opinion, I cannot profess the kind of certainty I would like to have about the arguments and record before us. All I can say is that, at this time and under these constraints, the problem appears real and the response to it not unconstitutional.”

For TikTok and content creators defending the app, the stakes were incredibly high. TikTok repeatedly denied there was any evidence of spying and warned that enforcing the law would allow the government to unlawfully impose “a massive and unprecedented speech restriction.”

But the Supreme Court declined to order a preliminary injunction to block the law until Trump took office, instead deciding to rush through oral arguments and reach a decision prior to the law’s enforcement deadline. Now TikTok has little recourse if it wishes to maintain US operations, as justices suggested during the trial that even if a president chose to not enforce the law, providing access to TikTok or enabling updates could be viewed as too risky for app stores or other distributors.

The law at the center of the case—the Protecting Americans from Foreign Adversary Controlled Applications Act—had strong bipartisan support under the Biden administration.

But President-elect Donald Trump said he opposed a TikTok ban, despite agreeing that US national security interests in preventing TikTok spying on or manipulating Americans were compelling. And this week, Senator Ed Markey (D-Mass.) has introduced a bill to extend the deadline ahead of a potential TikTok ban, and a top Trump adviser, Congressman Mike Waltz, has said that Trump plans to stop the ban and “keep TikTok from going dark,” the BBC reported. Even the Biden administration, whose justice department just finished arguing why the US needed to enforce the law to SCOTUS, “is considering ways to keep TikTok available,” sources told NBC News.

“What might happen next to TikTok remains unclear,” Gorsuch noted in the opinion.

Will Trump save TikTok?

It will likely soon be clear whether Trump will intervene. Trump filed a brief in December, requesting that the Supreme Court stay enforcement of the law until after he takes office because allegedly only he could make a deal to save TikTok. He criticized SCOTUS for rushing the decision and suggested that Congress’ passage of the law may have been “legislative encroachment” that potentially “binds his hands” as president.

“As the incoming Chief Executive, President Trump has a particularly powerful interest in and responsibility for those national-security and foreign-policy questions, and he is the right constitutional actor to resolve the dispute through political means,” Trump’s brief said.

TikTok’s CEO Chew signaled to users that Trump is expected to step in.

“On behalf of everyone at TikTok and all our users across the country, I want to thank President Trump for his commitment to work with us to find a solution that keeps TikTok available in the United States,” Chew’s statement said.

Chew also reminded Trump that he has 60 billion views of his content on TikTok and perhaps stands to lose a major platform through the ban.

“We are grateful and pleased to have the support of a president who truly understands our platform, one who has used TikTok to express his own thoughts and perspectives,” Chew said.

Trump seemingly has limited options to save TikTok, Forbes suggested. At trial, justices disagreed on whether Trump could legally decide to simply not enforce the law. And efforts to pause enforcement or claim compliance without evidence that ByteDance is working on selling off TikTok could be blocked by the court, analysts said. And while ByteDance has repeatedly said it’s unwilling to sell TikTok US, it’s possible, one analyst suggested to Forbes, that ByteDance might be more willing to divest “in exchange for Trump backing off his threat of high tariffs on Chinese imports.”

On Tuesday, a Bloomberg report suggested that China was considering whether selling TikTok to Elon Musk might be a good bargaining chip to de-escalate Trump’s attacks in the US-China trade war.

Ashley is a senior policy reporter for Ars Technica, dedicated to tracking social impacts of emerging policies and new technologies. She is a Chicago-based journalist with 20 years of experience.

TikTok loses Supreme Court fight, prepares to shut down Sunday Read More »

RedNote may wall off “TikTok refugees” to prevent US influence on Chinese users

censorship, china, Policy, rednote, social media censorship, tiktok, TikTok ban, Xiaohongshu / Rejus Almole / January 16, 2025

Whether TikTok will be banned in the US in three days is still up in the air. The Supreme Court has yet to announce its verdict on the constitutionality of a law requiring TikTok to either sell its US operations or shut down in the US. It’s possible that the Supreme Court could ask for more time to deliberate, potentially delaying enforcement of the law as TikTok has requested until after Donald Trump takes office.

While the divest-or-sell law had bipartisan support when it passed last year, momentum has seemingly shifted this week. Senator Ed Markey (D-Mass.) has introduced a bill to extend the deadline ahead of a potential TikTok ban, and a top Trump adviser, Congressman Mike Waltz, has said that Trump plans to stop the ban and “keep TikTok from going dark,” the BBC reported. Even the Biden administration, whose justice department just finished arguing why the US needed to enforce the law to SCOTUS, “is considering ways to keep TikTok available,” sources told NBC News.

Many US RedNote users quickly banned

For RedNote and China, the app’s sudden popularity as the US alternative to TikTok seems to have come as a surprise. A Beijing-based independent industry analyst, Liu Xingliang, told Reuters that RedNote was “caught unprepared” by the influx of users.

To keep restricted content off the app, RedNote allegedly has since been “scrambling to find ways to moderate English-language content and build English-Chinese translation tools,” two sources familiar with the company told Reuters. Time’s reporting echoed that, noting that “Red Note is urgently recruiting English content moderators [Chinese]” became a trending topic Wednesday on the Chinese social media app Weibo.

Many analysts have suggested that Americans’ fascination with RedNote will be short-lived. Liu told Reuters that “American netizens are in a dissatisfied mood, and wanting to find another Chinese app to use is a catharsis of short-term emotions and a rebellious gesture.” But unfortunately, “the experience on it is not very good for foreigners.”

On RedNote, Chinese users have warned Americans that China censors way more content than they’re used to on TikTok. Analysts told The Washington Post that RedNote’s “focus on shopping and entertainment means it is often even more active in blocking content seen as too serious for the app’s target audience.” Chinese users warned Americans not to post about “politics, religion, and drugs” or risk “account bans or legal repercussions, including jail time,” Rest of World reported. Meanwhile, on Reddit, Americans received additional warnings about common RedNote scams and reasons accounts could be banned. But Rest of World noted that many so-called “TikTok refugees” migrating to RedNote do not “seem to know, or care, about platform rules.”

RedNote may wall off “TikTok refugees” to prevent US influence on Chinese users Read More »

Trump told SCOTUS he plans to make a deal to save TikTok

bytedance, china, Donald Trump, First Amendment, free speech, online censorship, Policy, social media censorship, Supreme Court, tiktok, TikTok ban / Kris Guyer / December 30, 2024

Several members of Congress— Senator Edward J. Markey (D-Mass.), Senator Rand Paul (R-Ky.), and Representative Ro Khanna (D-Calif.)—filed a brief agreeing that “the TikTok ban does not survive First Amendment scrutiny.” They agreed with TikTok that the law is “illegitimate.”

Lawmakers’ “principle justification” for the ban—”preventing covert content manipulation by the Chinese government”—masked a “desire” to control TikTok content, they said. Further, it could be achieved by a less-restrictive alternative, they said, a stance which TikTok has long argued for.

Attorney General Merrick Garland defended the Act, though, urging SCOTUS to remain laser-focused on the question of whether a forced sale of TikTok that would seemingly allow the app to continue operating without impacting American free speech violates the First Amendment. If the court agrees that the law survives strict scrutiny, TikTok could still be facing an abrupt shutdown in January.

The Supreme Court has scheduled oral arguments to begin on January 10. TikTok and content creators who separately sued to block the law have asked for their arguments to be divided, so that the court can separately weigh “different perspectives” when deciding how to approach the First Amendment question.

In its own brief, TikTok has asked SCOTUS to strike the portions of the law singling out TikTok or “at the very least” explain to Congress that “it needed to do far better work either tailoring the Act’s restrictions or justifying why the only viable remedy was to prohibit Petitioners from operating TikTok.”

But that may not be necessary if Trump prevails. Trump told the court that TikTok was an important platform for his presidential campaign and that he should be the one to make the call on whether TikTok should remain in the US—not the Supreme Court.

Trump told SCOTUS he plans to make a deal to save TikTok Read More »

Supreme Court to decide if TikTok should be banned or sold

bytedance, china, First Amendment, free speech, Policy, SCOTUS, Supreme Court, tiktok, TikTok ban / Rejus Almole / December 18, 2024

While the controversial US law doesn’t necessarily ban TikTok, it does seem designed to make TikTok “go away,” Greene said, and such a move to interfere with a widely used communications platform seems “unprecedented.”

“The TikTok ban itself and the DC Circuit’s approval of it should be of great concern even to those who find TikTok undesirable or scary,” Greene said in a statement. “Shutting down communications platforms or forcing their reorganization based on concerns of foreign propaganda and anti-national manipulation is an eminently anti-democratic tactic, one that the US has previously condemned globally.”

Greene further warned that the US “cutting off a tool used by 170 million Americans to receive information and communicate with the world, without proving with evidence that the tools are presently seriously harmful” would “greatly” lower “well-established standards for restricting freedom of speech in the US.”

TikTok partly appears to be hoping that President-elect Donald Trump will disrupt enforcement of the law, but Greene said it remains unclear if Trump’s plan to “save TikTok” might just be a plan to support a sale to a US buyer. At least one former Trump ally, Steven Mnuchin, has reportedly expressed interest in buying the app.

For TikTok, putting pressure on Trump will likely be the next step, “if the Supreme Court ever says, ‘we agree the law is valid,'” Greene suggested.

“Then that’s it,” Greene said. “There’s no other legal recourse. You only have political recourses.”

Like other civil rights groups, the EFF plans to remain on TikTok’s side as the SCOTUS battle starts.

“We are pleased that the Supreme Court will take the case and will urge the justices to apply the appropriately demanding First Amendment scrutiny,” Greene said.

Supreme Court to decide if TikTok should be banned or sold Read More »

Facing ban next month, TikTok begs SCOTUS for help

bytedance, china, First Amendment, free speech, Policy, tiktok, TikTok ban, trump administration / Mike M. / December 17, 2024

TikTok: Ban is slippery slope to broad US censorship

According to TikTok, the government’s defense of the ban to prevent China from wielding a “covert” influence over Americans is a farce invented by lawyers to cover up the true mission of censorship. If the lower court’s verdict stands, TikTok alleged, “then Congress will have free rein to ban any American from speaking simply by identifying some risk that the speech is influenced by a foreign entity.”

TikTok doesn’t want to post big disclaimers on the app warning of “covert” influence, claiming that the government relied on “secret evidence” to prove this influence occurs on TikTok. But if the Supreme Court agrees that the government needed to show more than “bare factual assertions” to back national security claims the lower court said justified any potential speech restrictions, then the court will also likely agree to reverse the lower court’s decision, TikTok suggested.

It will become much clearer by January 6 whether the January 19 ban will take effect, at which point TikTok would shut down, booting all US users from the app. TikTok urged the Supreme Court to agree it is in the public interest to delay the ban and review the constitutional claims to prevent any “extreme” harms to both TikTok and US users who depend on the app for news, community, and income.

If SCOTUS doesn’t intervene, TikTok said that the lower court’s “flawed legal rationales would open the door to upholding content-based speech bans in contexts far different than this one.”

“Fearmongering about national security cannot obscure the threat that the Act itself poses to all Americans,” TikTok alleged, while suggesting that even Congress would agree that a “modest delay” in enforcing the law wouldn’t pose any immediate risk to US national security. Congress is also aware that a sale would not be technically, commercially, or legally possible in the timeframe provided, TikTok said. A temporary injunction would prevent irreparable harms, TikTok said, including the irreparable harm courts have long held is caused by restricting speech of Americans for any amount of time.

“An interim injunction is also appropriate because it will give the incoming Administration time to determine its position, as the President-elect and his advisors have voiced support for saving TikTok,” TikTok argued.

Ars could not immediately reach TikTok for comment.

Facing ban next month, TikTok begs SCOTUS for help Read More »

US businesses will lose $1B in one month if TikTok is banned, TikTok warns

bytedance, Policy, SCOTUS, Supreme Court, tiktok, TikTok ban / Tim Belzer / December 9, 2024

The US is prepared to fight the injunction. In a letter, the US Justice Department argued that the court has already “definitively rejected petitioners’ constitutional claims” and no further briefing should be needed before rejecting the injunction.

If the court denies the injunction, TikTok plans to immediately ask SCOTUS for an injunction next. That’s part of the reason why TikTok wants the lower court to grant the injunction—out of respect for the higher court.

“Unless this Court grants interim relief, the Supreme Court will be forced to resolve an emergency injunction application on this weighty constitutional question in mere weeks (and over the holidays, no less),” TikTok argued.

The DOJ, however, argued that’s precisely why the court should quickly deny the injunction.

“An expedient decision by this Court denying petitioners’ motions, without awaiting the government’s response, would be appropriate to maximize the time available for the Supreme Court’s consideration of petitioners’ submissions,” the DOJ’s letter said.

TikTok has requested a decision on the injunction by December 16, and the government has agreed to file its response by Wednesday.

This is perhaps the most dire fight of TikTok’s life. The social media company has warned that not only would a US ban impact US TikTok users, but also “tens of millions” of users globally whose service could be interrupted if TikTok has to cut off US users. And once TikTok loses those users, there’s no telling if they’ll ever come back, even if TikTok wins a dragged-out court battle.

For TikTok users, an injunction granted at this stage would offer a glimmer of hope that TikTok may survive as a preferred platform for free speech and irreplaceable source of income. But for TikTok, the injunction would likely be a stepping stone, as the fastest path to securing its future increasingly seems to be appealing to Trump.

“It would not be in the interest of anyone—not the parties, the public, or the courts—to have emergency Supreme Court litigation over the Act’s constitutionality, only for the new Administration to halt its enforcement mere days or weeks later,” TikTok argued. “This Court should avoid that burdensome spectacle by granting an injunction that would allow Petitioners to seek further orderly review only if necessary.”

US businesses will lose $1B in one month if TikTok is banned, TikTok warns Read More »

TikTok’s two paths to avoid US ban: Beg SCOTUS or woo Trump

bytedance, china, national security, Policy, tiktok, TikTok ban / Tim Belzer / December 6, 2024

“What the Act targets is the PRC’s ability to manipulate that content covertly,” the ruling said. “Understood in that way, the Government’s justification is wholly consonant with the First Amendment.”

TikTok likely to appeal to Supreme Court

TikTok is unsurprisingly frustrated by the ruling. In a statement provided to Ars, TikTok spokesperson Michael Hughes confirmed that TikTok intended to appeal the case to the Supreme Court.

“The Supreme Court has an established historical record of protecting Americans’ right to free speech, and we expect they will do just that on this important constitutional issue,” Hughes said.

Throughout the litigation, ByteDance had emphasized that divesting TikTok in the time that the law required was not possible. But the court disagreed that ByteDance being unable to spin off TikTok by January turned the US law into a de facto TikTok ban. Instead, the court suggested that TikTok could temporarily become unavailable until it’s sold off, only facing a ban if ByteDance dragged its feet or resisted divestiture.

There’s no indication yet that ByteDance would ever be willing to part with its most popular product. And if there’s no sale and SCOTUS declines the case, that would likely mean that TikTok would not be available in the US, as providing access to TikTok would risk heavy fines. Hughes warned that millions of TikTokers will be silenced next year if the appeals court ruling stands.

“Unfortunately, the TikTok ban was conceived and pushed through based upon inaccurate, flawed and hypothetical information, resulting in outright censorship of the American people,” Hughes said. “The TikTok ban, unless stopped, will silence the voices of over 170 million Americans here in the US and around the world on January 19th, 2025.”

TikTok’s two paths to avoid US ban: Beg SCOTUS or woo Trump Read More »

ByteDance intern fired for planting malicious code in AI models

AI models, Artificial Intelligence, bytedance, china, Chinese community party, generative ai, large language models, LLMs, Policy, tiktok, TikTok ban / Kris Guyer / October 21, 2024

After rumors swirled that TikTok owner ByteDance had lost tens of millions after an intern sabotaged its AI models, ByteDance issued a statement this weekend hoping to silence all the social media chatter in China.

In a social media post translated and reviewed by Ars, ByteDance clarified “facts” about “interns destroying large model training” and confirmed that one intern was fired in August.

According to ByteDance, the intern had held a position in the company’s commercial technology team but was fired for committing “serious disciplinary violations.” Most notably, the intern allegedly “maliciously interfered with the model training tasks” for a ByteDance research project, ByteDance said.

None of the intern’s sabotage impacted ByteDance’s commercial projects or online businesses, ByteDance said, and none of ByteDance’s large models were affected.

Online rumors suggested that more than 8,000 graphical processing units were involved in the sabotage and that ByteDance lost “tens of millions of dollars” due to the intern’s interference, but these claims were “seriously exaggerated,” ByteDance said.

The tech company also accused the intern of adding misleading information to his social media profile, seemingly posturing that his work was connected to ByteDance’s AI Lab rather than its commercial technology team. In the statement, ByteDance confirmed that the intern’s university was notified of what happened, as were industry associations, presumably to prevent the intern from misleading others.

ByteDance’s statement this weekend didn’t seem to silence all the rumors online, though.

One commenter on ByteDance’s social media post disputed the distinction between the AI Lab and the commercial technology team, claiming that “the commercialization team he is in was previously under the AI Lab. In the past two years, the team’s recruitment was written as AI Lab. He joined the team as an intern in 2021, and it might be the most advanced AI Lab.”

ByteDance intern fired for planting malicious code in AI models Read More »

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

bytedance, china, data privacy, Data Security, national security, Policy, tiktok, TikTok ban / Rejus Almole / September 16, 2024

Andrew J. Pincus, attorney for TikTok and ByteDance, leaves the E. Barrett Prettyman US Court House with members of his legal team as the U.S. Court of Appeals hears oral arguments in the case <em>TikTok Inc. v. Merrick Garland</em> on September 16 in Washington, DC. ” src=”https://cdn.arstechnica.net/wp-content/uploads/2024/09/GettyImages-2172424134-800×620.jpg”></img><figcaption>
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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 “often” are “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.

US can’t ban TikTok for security reasons while ignoring Temu, other apps Read More »

TikTok vaguely disputes report that it’s making a US-only app

bytedance, First Amendment, Policy, tiktok, TikTok ban / Rejus Almole / May 31, 2024

Exploring a different route —

TikTok has spent months separating code for US-only algorithm, insiders claim.

Ashley Belanger – May 31, 2024 6: 23 pm UTC

TikTok is now disputing a Reuters report that claims the short-video app is cloning its algorithm to potentially offer a different version of the app, which might degrade over time, just for US users.

Sources “with direct knowledge” of the project—granted anonymity because they’re not authorized to discuss it publicly—told Reuters that the TikTok effort began late last year. They said that the project will likely take a year to complete, requiring hundreds of engineers to separate millions of lines of code.

As these sources reported, TikTok’s tremendous undertaking could potentially help prepare its China-based owner ByteDance to appease US lawmakers who passed a law in April forcing TikTok to sell its US-based operations by January 19 or face a ban. But TikTok has maintained that the “qualified divestiture” required by the law would be impossible, and on Thursday, TikTok denied the accuracy of Reuters’ report while reiterating its stance that a sale is not in the cards.

“The Reuters story published today is misleading and factually inaccurate,” the TikTok Policy account posted on X (formerly Twitter). “As we said in our court filing, the ‘qualified divestiture’ demanded by the Act to allow TikTok to continue operating in the United States is simply not possible: not commercially, not technologically, not legally. And certainly not on the 270-day timeline required by the Act.”

It remains unclear precisely which parts of Reuters’ report are supposedly “misleading and factually inaccurate.” A Reuters spokesperson said that Reuters stands by its reporting.

A TikTok spokesperson told Ars that “while we have continued work in good faith to further safeguard the authenticity of the TikTok experience, it is simply false to suggest that this work would facilitate divestiture or that divestiture is even a possibility.”

TikTok is currently suing to block the US law on First Amendment grounds, and this week a court fast-tracked that legal challenge to attempt to resolve the matter before the law takes effect next year. Oral arguments are scheduled to start this September, with a ruling expected by December 6, which Reuters reported leaves time for a potential Supreme Court challenge to that ruling.

However, in the meantime, sources told Reuters that TikTok is seemingly exploring all its options to avoid running afoul of the US law, including separating its code base and even once considering open-sourcing parts of its algorithm to increase transparency.

Separating out the code is not an easy task, insiders told Reuters.

“Compliance and legal issues involved with determining what parts of the code can be carried over to TikTok are complicating the work,” one source told Reuters. “Each line of code has to be reviewed to determine if it can go into the separate code base.”

But creating a US-only content-recommendation algorithm could be worth it, as it could allow TikTok US to operate independently from the China-based TikTok app in a manner that could satisfy lawmakers worried about the Chinese government potentially spying on Americans through the app.

However, there’s no guaranteeing that the US-only version of TikTok’s content-recommendation algorithm will perform as well as the currently available app in the US, sources told Reuters. By potentially cutting off TikTok US from Chinese engineers who developed and maintain the algorithm, US users could miss out on code updates improving or maintaining desired functionality. That means TikTok’s popular For You Page recommendations may suffer, as “TikTok US may not be able to deliver the same level of performance as the existing TikTok,” sources told Reuters.

TikTok vaguely disputes report that it’s making a US-only app Read More »

TikTok owner has strong First Amendment case against US ban, professors say

Policy, TikTok ban, tiktok bytedance / Paul Patrick / April 27, 2024

Illustration of the United States flag and a phone with a cracked screen running the TikTok app — Getty Images | NurPhoto

TikTok owner ByteDance is preparing to sue the US government now that President Biden has signed into law a bill that will ban TikTok in the US if its Chinese owner doesn’t sell the company within 270 days. While it’s impossible to predict the outcome with certainty, law professors speaking to Ars believe that ByteDance will have a strong First Amendment case in its lawsuit against the US.

One reason for this belief is that just a few months ago, a US District Court judge blocked a Montana state law that attempted to ban TikTok. In October 2020, another federal judge in Pennsylvania blocked a Trump administration order that would have banned TikTok from operating inside the US. TikTok also won a preliminary injunction against Trump in US District Court for the District of Columbia in September 2020.

“Courts have said that a TikTok ban is a First Amendment problem,” Santa Clara University law professor Eric Goldman, who writes frequent analysis of legal cases involving technology, told Ars this week. “And Congress didn’t really try to navigate away from that. They just went ahead and disregarded the court rulings to date.”

The fact that previous attempts to ban TikTok have failed is “pretty good evidence that the government has an uphill battle justifying the ban,” Goldman said.

TikTok users engage in protected speech

The Montana law “bans TikTok outright and, in doing so, it limits constitutionally protected First Amendment speech,” US District Judge Donald Molloy wrote in November 2023 when he granted a preliminary injunction that blocks the state law.

“The Montana court concluded that the First Amendment challenge would be likely to succeed. This will give TikTok some hope that other courts will follow suit with respect to a national order,” Georgetown Law Professor Anupam Chander told Ars.

Molloy’s ruling said that without TikTok, “User Plaintiffs are deprived of communicating by their preferred means of speech, and thus First Amendment scrutiny is appropriate.” TikTok’s speech interests must be considered “because the application’s decisions related to how it selects, curates, and arranges content are also protected by the First Amendment,” the ruling said.

Banning apps that let people talk to each other “is categorically impermissible,” Goldman said. While the Chinese government engaging in propaganda is a problem, “we need to address that as a government propaganda problem, and not just limited to China,” he said. In Goldman’s view, a broader approach should also be used to stop governments from siphoning user data.

TikTok and opponents of bans haven’t won every case. A federal judge in Texas ruled in favor of Texas Governor Greg Abbott in December 2023. But that ruling only concerned a ban on state employees using TikTok on government-issued devices rather than a law that potentially affects all users of TikTok.

Weighing national security vs. First Amendment

US lawmakers have alleged that the Chinese Communist Party can weaponize TikTok to manipulate public opinion and access user data. But Chander was skeptical of whether the US government could convincingly justify its new law in court on national security grounds.

“Thus far, the government has refused to make public its evidence of a national security threat,” he told Ars. “TikTok put in an elaborate set of controls to insulate the app from malign foreign influence, and the government hasn’t shown why those controls are insufficient.”

The ruling against Trump by a federal judge in Pennsylvania noted that “the Government’s own descriptions of the national security threat posed by the TikTok app are phrased in the hypothetical.”

Chander stressed that the outcome of ByteDance’s planned case against the US is difficult to predict, however. “I would vote against the law if I were a judge, but it’s unclear how judges will weigh the alleged national security risks against the real free expression incursions,” he said.

Montana case may be “bellwether”

There are at least three types of potential plaintiffs that could lodge constitutional challenges to a TikTok ban, Goldman said. There’s TikTok itself, the users of TikTok who would no longer be able to post on the platform, and app stores that would be ordered not to carry the TikTok app.

Montana was sued by TikTok and users. Lead plaintiff Samantha Alario runs a local swimwear business and uses TikTok to market her products.

Montana Attorney General Austin Knudsen appealed the ruling against his state to the US Court of Appeals for the 9th Circuit. The Montana case could make it to the Supreme Court before there is any resolution on the enforceability of the US law, Goldman said.

“It’s possible that the Montana ban is actually going to be the bellwether that’s going to set the template for the constitutional review of the Congressional action,” Goldman said.

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ByteDance unlikely to sell TikTok, as former Trump official plots purchase

Activision Blizzard, bytedance, china, Policy, steven Mnuchin, tiktok, TikTok ban / Mike M. / March 14, 2024

Former US Treasury Secretary Steven Mnuchin is reportedly assembling an investor group to buy TikTok as the US comes closer to enacting legislation forcing the company to either divest from Chinese ownership or face a nationwide ban.

“I think the legislation should pass, and I think it should be sold,” Mnuchin told CNBC Thursday. “It’s a great business, and I’m going to put together a group to buy TikTok.”

Mnuchin currently leads Liberty Strategic Capital, which describes itself as “a Washington DC-based private equity firm focused on investing in dynamic global technology companies.”

According to CNBC, there is already “common ground between Liberty and ByteDance,” as Softbank—which invested in ByteDance in 2018—partnered with Liberty in 2021, contributing what Financial Times reported was an unknown amount to Mnuchin’s $2.5 billion private equity fund.

TikTok has made no indication that it would consider a sale should the legislation be enacted. Instead, TikTok CEO Shou Zi Chew is continuing to rally TikTok users to oppose the legislation. In a TikTok post viewed by 3.8 million users, the CEO described yesterday’s vote passing the law in the US House of Representatives as “disappointing.”

“This legislation, if signed into law, WILL lead to a ban of TikTok in the United States,” Chew said, seeming to suggest that TikTok’s CEO is not considering a sale to be an option.

But Mnuchin expects that TikTok may be forced to choose to divest—as the US remains an increasingly significant market for the company. If so, he plans to be ready to snatch up the popular app, which TikTok estimated boasts 170 million American monthly active users.

“This should be owned by US businesses,” Mnuchin told CNBC. “There’s no way that the Chinese would ever let a US company own something like this in China.”

Chinese foreign ministry spokesperson Wang Wenbin has said that a TikTok ban in the US would hurt the US, while little evidence backs up the supposed national security threat that lawmakers claim is urgent to address, the BBC reported. Wang has accused the US of “bullying behavior that cannot win in fair competition.” This behavior, Wang said, “disrupts companies’ normal business activity, damages the confidence of international investors in the investment environment, and damages the normal international economic and trade order.”

Liberty and Mnuchin were not immediately available to comment on whether investors have shown any serious interest so far.

However, according to the Los Angeles Times, Mnuchin has already approached a “bunch of people” to consider investing. Mnuchin told CNBC that TikTok’s technology would be the driving force behind wooing various investors.

“It would be a combination of investors, so there would be no one investor that controls this,” Mnuchin told CNBC. “The issue is all about the technology. This needs to be controlled by US businesses.”

Mnuchin’s group would likely face competition to buy TikTok. ByteDance—which PitchBook data indicates was valued at $223.5 billion in 2023—should also expect an offer from former Activision Blizzard CEO Bobby Kotick, The Wall Street Journal reported.

It’s unclear how valuable TikTok is to ByteDance, CNBC reported, and Mnuchin has not specified what potential valuation his group would anticipate. But if TikTok’s algorithm—which was developed in China—is part of the sale, the price would likely be higher than if ByteDance refused to sell the tech fueling the social media app’s rapid rise to popularity.

In 2020, ByteDance weighed various ownership options while facing a potential US ban under the Trump administration, The New York Times reported. Mnuchin served as Secretary of the Treasury at that time. Although ByteDance ended up partnering with Oracle to protect American TikTok users’ data instead, people briefed on ByteDance’s discussions then confirmed that ByteDance was considering carving out TikTok, potentially allowing the company to “receive new investments from existing ByteDance investors.”

The Information provided a breakdown of the most likely investors to be considered by ByteDance back in 2020. Under that plan, though, ByteDance intended to retain a minority holding rather than completely divesting ownership, the Times reported.

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