Sensitivity to the First Amendment and National Security Threats in the App Store and in the Prison of a High-Cost TinkTok App Store

“It would be negligent of TikTok not to be pursuing this on two tracks right now at the same time,” Schettenhelm said, “both pursuing a First Amendment case to try to stop it, but at the same time, exploring a potential sale. Because there is not time to think about a sale and litigate.

While ByteDance may consider selling without its algorithm to avoid the export controls, Dong and Le say even that option might be limited. The Chinese government isn’t really motivated by money, even though there’s a chance of a success story with an app selling for billions of dollars.

There is a piece of the public that has been missing, and it is clear that there are dangers to users of TikTok in the US With that in mind, some members of the public seem to have been swayed into voting for the bill by the fact that they received classified briefings. The public isn’t aware of what intelligence community believes to be the national security risks generated by the app.

Ultimately, the court will have to weigh the supposed speech restrictions against the government’s national security claims, pitting two typically powerful legal arguments against each other. “Traditionally, First Amendment claims tend to be very persuasive to courts, and traditionally, national security claims also tend to be very persuasive to courts,” Hans said. “And if this case gets litigated, I think we’ll have at least one data point on which is, in fact, more persuasive.”

He acknowledges that this can create a perverse incentive for the government to always scream national security and therefore triumph without any consideration of the consequences.

Using the DC Circuit Court of Appeals to the First Amendment to the Penalties against Russian-Based Media Production: The Case of Kaspersky Lab

The DC Circuit Court has exclusive jurisdiction over many aspects of federal administrative law, such as immigration law and some tax law. Dealing with challenges is par for the course in this circuit. The court will take the issue very seriously and apply Supreme Court precedent in a serious way. “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, it must show that Congress explored alternatives that would have lesser consequences for speech. The DC Circuit often questions whether or not the federal government took a hard look at evidence in the record and used it properly. Schettenhelm said.

The courts tend to apply a higher level of discretion to congressional actions when it comes to national security, and that is something the Trump administration tried to accomplish through an executive order.

There are also longstanding rules about foreign ownership of broadcast television and radio stations — rules the government may try to lean on to support the idea that preventing a foreign power from owning influential media products can overcome a First Amendment challenge.

While he thinks the First Amendment is the best option in court, he also believes that the legislation will violate the Constitution by singling out someone or companies for punishment without due process. The argument that the prohibition on Russian-based Kaspersky Lab’s products in US government information systems was based on the idea that the Russian government might gain access to American systems will fail, he thinks. 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 took up the case then the clock would stop and the case would take another year or two to be decided. But if the government wins, Schettenhelm says, the Supreme Court might be inclined to let that decision stand, in which case ByteDance would need to act fast to figure out if a sale is viable.

The case would only go to the Supreme Court after it starts at the appeals court level. The initial nine-month divestment period would run out in mid-January, and the bill requires the president to see some progress in order to grant an extra 90-day extension.

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

China’s dominant influence on the American business: How China gets a kick out of China and why it doesn’t matter where it is, and how it affects its operations

“I don’t believe it motivates them one bit,” says Dong. The owners of ByteDance would love to maximize the value of the property sale, as they are entrepreneurs. But ultimately, the Chinese government is not going to be motivated by just the fact that a lot of money’s being dangled in front of ByteDance for the sale of this company.”

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’s engagement with Russia during its war with Ukraine as evidence 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.

“They’re okay with ByteDance and TikTok making a lot of profit, but not in an extreme way,” Le said. He gave the example of Alibaba founder Jack Ma, who suddenly retreated from the public eye a few years ago after he publicly criticized Chinese regulators, prompting scrutiny about his whereabouts (he’s more recently reemerged publicly). One of the most successful Chinese companies is Alibaba.

If the Chinese government takes action against US businesses that could lead to a dangerous game of brinkmanship. You are creating a divide where countries have to choose between being associated with the US or China, according to Le. You’re creating a tech Cold War.

“China usually responds tit-for-tat,” Dong says. “Just imagine that China now turns around and says to McDonald’s, ‘I want you to sever and separate your ownership of the China operations, and it must 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 repercussions could be enormous.

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. A source tells Forbes that CBP agents have a printed list of questions to ask TikTok and ByteDance workers.

The CEO of TikTok was put under 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.