New TikTok deal would violate US law, expert says

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00:00For more on this, Jonathan Penney joins us on the program.

00:02He's an associate professor at Osgoode Hall Law School at York University in Toronto.

00:08Professor Penney, thank you for joining us.

00:10So I want to get right into it.

00:11I mean, Donald Trump went from pushing for TikTok to be banned to then later opposing

00:15the Biden administration's efforts.

00:17Can you talk us through the shift in strategy?

00:20Absolutely.

00:21So this was a law that was passed under the prior administration, under Biden's administration.

00:27And it was one that was really bipartisan.

00:30You had both Republicans and Democrats working in Congress to pass this law.

00:37At least the stated justification was the concern, national security concerns about

00:43TikTok.

00:44That is TikTok being a platform that is easily controlled and influenced by the Chinese

00:52government.

00:52Why?

00:53Because ByteDance, the Chinese internet, Chinese-based internet company that owns and controls the

00:58platform, is based in Beijing.

01:01So it's one that easily is compelled to follow all the dictates of the Chinese state media,

01:07censorship, other kinds of security concerns.

01:11These were what went into the justification for the ban.

01:15What happened was that the ban came into force technically as of January 19th.

01:19So Biden's still president at that stage.

01:22He signs the ban into law.

01:26And so TikTok goes dark for a few days.

01:28Trump is then sworn in January 21st.

01:32You have an entirely new administration, and Trump takes an entirely different approach

01:37to TikTok.

01:38What was expected was that he would enforce the ban.

01:42And the way the ban worked was either TikTok is entirely divested of this Chinese internet

01:51company's ownership, that is ByteDance.

01:52ByteDance has to give up control of the platform entirely at that stage.

01:57Or if it doesn't, then it's entirely banned in the United States.

02:02What happens is Trump immediately signs an executive order when he's sworn in, delaying

02:08the application of that ban for 75 days.

02:11Now, under the law, the president does have power to delay enforcement of the ban, but

02:16only where there is good faith negotiations towards divestiture.

02:20That is qualified divestiture as defined under the law.

02:24And that means ByteDance, this Chinese internet company that is easily controlled by the Chinese

02:31government, must give up ownership and influence of the platform itself.

02:36Trump has taken an entirely different act.

02:39So J.D. Vance said last week that an agreement satisfying U.S. national security concerns

02:44is almost certain.

02:45Do you think that that's credible?

02:47And if so, what might that look like?

02:50So this seems to be the line that the new administration is taking.

02:55And what I would say is, based on what has been reported, what Trump has said, what J.D.

03:01Vance has said, is that this new deal that will likely be approved will be in violation

03:09of what the law actually requires.

03:11As I mentioned earlier, the law requires qualified divestiture.

03:16That is, ByteDance must give up entirely its ownership and control of TikTok as a platform,

03:24as a company.

03:25What seems to be in the works is a deal that involves Oracle, a company that's already

03:31been helping ByteDance and TikTok manage its data within the United States.

03:37It takes over control.

03:38But the problem with the proposed solution or the divestiture is that it doesn't meet

03:44the requirements.

03:45That is, under the deal that Trump seems to be working out right now between Oracle, ByteDance

03:51and the administration, is ByteDance, i.e., Chinese internet company and Chinese state

03:58interest, retains control over the app.

04:01So if the deal that's being reported ends up being the one that the government and Trump

04:08approves, it will be in violation of the requirements of the law.

04:12As you say, Professor, the debate has been framed as one about national security, theoretically.

04:17But to what extent do you think that rivalries among big tech platforms or even government's

04:22desire to use these apps for political purposes is more likely to be driving what we see happening?

04:28Oh, yeah.

04:29So absolutely.

04:30So the stated justifications that I mentioned earlier for the ban, at least what the members

04:37of Congress who tailored the law, their concerns, as stated, was national security.

04:41The idea that China, through the TikTok platform, could track government employees.

04:49It could use it for privacy violations.

04:53And in some cases, the concern today is that its algorithms could be used to manipulate

04:58and influence the U.S. population, therefore interfere in elections.

05:03And that's something that's been—you've seen accusations of this, both in the U.S. election

05:07and in Romania, for example, where TikTok was accused of promoting a far-right candidate

05:12on Georgescu.

05:13So this is a new concern about TikTok, but also platforms as well.

05:18The risk with these kinds of bans, and I think what the Trump administration's plan is simply

05:24this, is that it has little concern about national security.

05:30It seems to have very little concern about privacy.

05:33What the new strategy of the administration is, is that it will actually use this ban

05:40as a kind of leverage point, almost a way to extort or use the legal leverage that the

05:46law is providing to potentially weaponize TikTok for its own political purposes.

05:53That's something that we're already seeing in the United States with Elon Musk's platform

05:59X, which is clearly one which is being used to promote the politics and the programs and

06:05policies of the Trump administration.

06:08That was clear during the election.

06:09It's even clearer today.

06:12A platform being owned and controlled by Elon Musk, a very influential and powerful Trump

06:16administration official.

06:18The concern about Trump's plan is that it's going to be OK with China holding—

06:24Professor Petty, I'm so sorry.

06:26I hate to cut you off, but I've got my production team telling me that we don't have any more

06:30time.

06:31I could listen to you for a lot more time, but we have to keep it there for now.

06:34Thank you so much for coming on the show.

06:36Thanks so much.

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