Justices focus on ByteDance as TikTok ban looms

The Street

Here is what Justices Brett Kavanaugh, Amy Coney Barrett, Kentanji Brown Jackson and Chief Justice John Roberts said about TikTok's Chinese parent company.

Transcript

00:00What happens after January 19th, if you lose this case, can you just spell that out?

00:05At least as I understand it, we go dark. Essentially, the platform shuts down.

00:13Unless there's a divestiture.

00:15Unless there's a divestiture, unless President Trump exercises his authority to extend it by

00:20night. But he can't do that on January 19th. On January 19th, we still have President Biden.

00:26And on January 19th, as I understand it, we shut down. It is possible that come January 20th,

00:3221st, 22nd, we might be in a different world. Again, that's one of the reasons why I think

00:37it makes perfect sense to issue a preliminary injunction here and simply buy everybody a

00:44little breathing space. I think Congress and the president were concerned that China was

00:50accessing information about millions of Americans, tens of millions of Americans,

00:55including teenagers, people in their 20s, that they would use that information over time to

01:02develop spies, to turn people, to blackmail people, people who a generation from now will

01:08be working in the FBI or the CIA or in the State Department. Is that not a realistic

01:17assessment by Congress and the president of the risks here?

01:21Well, Your Honor, I'm not disputing the risks. I'm disputing the means that they've chosen. One way,

01:26the most direct way to address that, all of this user data sits on data servers in Virginia,

01:31controlled by Oracle. I'm not talking about the National Security Agreement. What I'm talking

01:35about is a law that simply says to TikTok Incorporated and its US employees, you cannot

01:41share that user data with anybody. You can't give it to ByteDance. You can't give it to China. You

01:46can't give it to Google. You can't give it to Amazon. You cannot give it to anybody under threat

01:52of massive penalties. They never even considered that most obvious alternative. The law doesn't

01:57say TikTok has to shut down. It says ByteDance has to divest. If ByteDance divested TikTok,

02:04we wouldn't be here, right? If ByteDance was willing to let you go and willing to let you

02:09take the source code with you, that would be fine, right? We would not be here. Well, Your Honor,

02:14if ByteDance divested, then the law wouldn't fall on TikTok. But the law will, the law,

02:22not ByteDance. But that's because of ByteDance's choice. The underlying source code, it takes a

02:27team of engineers to update and maintain that. It would take us many years to reconstruct

02:31a brand new team of engineers to do that with respect to the source code. It's not that you

02:36couldn't execute the disentanglement. You could say we're independent. You just can't recreate

02:42TikTok in any kind of way. Well, I think that any new TikTok would be a fundamentally different

02:48platform with different content, which is yet another reason why I think this is a content-based

02:53restriction that falls directly on TikTok incorporated itself in our platform. The

02:58problem I think you're articulating is that you want to use ByteDance's algorithm and therefore

03:04associate with ByteDance. And Congress has prohibited that. We want to use the algorithm

03:10that we think reflects the best mix of content. That's the algorithm that reflects the best mix

03:16of content. What this law says is we can't do that unless ByteDance exercises a qualified divestiture.

03:23But I also think more directly what this law does is it says that TikTok incorporated,

03:28if ByteDance doesn't exercise a qualified divestiture, you have to go mute. You cannot

03:35speak at all. No, I don't think it says that, though. I mean, if TikTok were to post-divestiture

03:42or whatever, pre-divestiture, come up with its own algorithm, right, then when the divestiture

03:48happened, it could still operate. It doesn't say TikTok, you can't speak. I think that's theoretically correct,

03:52Your Honor, but I think that also underscores the content-based nature of the restriction.

03:56No, but the fact that that's true suggests that you're wrong about the statute being

04:02read as saying TikTok, you have to go mute, because TikTok can continue to operate on its own algorithm,

04:09on its own terms, as long as it's not associated with ByteDance. So isn't this really just all

04:16about association? I'm not talking about the content manipulation. I'm talking about the

04:20content harvesting. When you say content harvesting, do you mean people's data?

04:25They've got all the information, whatever algorithms they want, that has access to the personal

04:31information, or at least information that is not readily available, about 170 million Americans.

04:36And whether they're going to use it in 10 or 15 years, when those people grow up and

04:43have different jobs in different places, or whether they're going to use it now, that at least, as I

04:47look at the congressional record, is what Congress was concerned about. And they're not

04:54concerned about the fact that it is available. As I said, the remedy is just somebody else has to run

05:00TikTok.

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