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Tik No Tok: National Security, the Ban, and the Recent Supreme Court Ruling

• Mercury Legal Group PLLC • Season 2 • Episode 1

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The episode explores the complex saga of TikTok’s potential ban in the United States and its implications for users, businesses, and national security. As political pressures evolve, the episode raises critical questions about data privacy, foreign influence, and the future of social media in America.

• Overview of TikTok's history and rise to popularity 
• Political concerns and investigations surrounding TikTok 
• Pentagon's actions regarding military device bans 
• Impact of executive orders from the Trump administration 
• Biden administration's delayed response 
• Internal data access issues highlighted by BuzzFeed report 
• Congressional hearings with TikTok’s CEO 
• Discussion on the Protecting Americans from Foreign Adversary Controlled Applications Act 
• Supreme Court ruling on TikTok’s operational status 
• Ethical considerations in social media algorithms and practices 
• Call for stronger privacy laws in the U.S. 
• The consequences of relying solely on one platform 
• Encouragement to diversify across multiple social media platforms

To learn more about the services offered by Mercury Legal Group PLLC, please visit https://mercurylegalgroup.com/

THE INFORMATION PROVIDED IN THIS CONTENT IS NOT LEGAL ADVICE, AND NO ATTORNEY-CLIENT OR CONFIDENTIAL RELATIONSHIP IS OR WILL BE FORMED BY CONSUMPTION OF THIS CONTENT.

Robert Marks Esq:

Hello there. As I'm sure you've heard, this Sunday, january 19th, tiktok will be going dark, effectively being banned in the United States, and I'm sure you're wondering why and how. Well, it's a little more complicated than just saying TikTok is banned. So if you're curious, if you're interested, if you're wondering where to go, sit right back, get a nice cup of coffee or tea and let's dig in. I'm Robert Marks and this is the Mercury Legal Sidebar.

Robert Marks Esq:

First, a little history about TikTok. Tiktok's parent company, bytedance, was founded in China in March of 2012. Tiktok's parent company, bytedance, was founded in China in March of 2012. Its first product was actually a personalized news aggregator for Chinese users. Two years later, in 2014, a startup called Musically, which was popularizing short lip-syncing music videos, was also founded in China by a different company. Musically grows in the charts in one year and ByteDance launches a competing product called Duyin for its Chinese users. This app would be spun off for foreign audiences as TikTok. In 2017, bytedance acquires Musically for $1 billion and integrates it into TikTok, creating the perfect storm for binge-watching and also content creation with a music background. Little Nos X in 2019 releases the song Old Town Road on TikTok, where it goes viral and pushes the song to its popularity.

Robert Marks Esq:

I would contend that a lot of people probably first heard of TikTok in 2019. It was also in that year when politicians US politicians, I should say began raising alarms about TikTok's influence, calling for investigations both into the Musically acquisition as well as to just a simple national security probe into TikTok and other Chinese-owned apps. That investigation began in November of 2019. And one month later, the Pentagon recommends to all US military personnel that they need to delete TikTok from all phones, both personal and government-issued. Some services even ban the app outright on military-owned phones. The Pentagon follows suit in January of 2020, banning the app from all military-issued devices. At that same time, tiktok becomes the second most downloaded app in the world. In July of 2020, india actually bans TikTok and dozens of other Chinese apps in response to a border clash with China. President Donald Trump also said in the same month that he was considering a ban on TikTok as a retaliation for China's alleged mishandling of the COVID-19 pandemic. Later, in August of 2020, trump even issues a sweeping but vague executive order banning American companies from any transaction with ByteDance and its subsidiaries, including TikTok. Several days later, he issues a second order demanding that ByteDance divests itself of TikTok's US operations within 90 days. In November of 2020, joe Biden is elected president and he doesn't offer any new policy on this TikTok ban. And since he won't take office till January, the Trump executive order planned for sale unravels and it's never addressed when Joe Biden takes office. He does postpone all legal cases involving Trump's plan to ban TikTok Fast forward to 2022, and there was a detailed report, actually from BuzzFeed, that revealed that Chinese-based ByteDance employees had repeatedly accessed the information of the non-public information of TikTok users based on leaked recordings from internal TikTok meetings meetings.

Robert Marks Esq:

Tiktok's response to this was announcing that all user data would be migrated to US-based servers managed by Oracle. Despite this, there was still a concern that Chinese authorities could still access the US data. Not just having it on US property wasn't enough to stop the concern with US officials At the end of 2022 to try to influence its users. In February of 2023, the White House gives federal agencies 30 days to ensure that TikTok is deleted from all government-issued mobile devices issued mobile devices. Both the FBI and the FCC warn that ByteDance could share user data with China, specifically the Chinese Communist Party. I think it's worth noting that, first off, the White House, the president, the executive branch, congress, they have the ability and the right to control and enforce what is on government-issued devices, same as any employer that issues an employer device, a business device, to their employees. However, I always felt that this alarm that was being raised, this warning, this concern, was hollow in that, at the same time, these government officials had TikTok accounts and were posting content from their personal device, from their campaign devices. You know, president Biden himself famously created a TikTok account during the 2024 election and I think, from a marketing perspective, from a PR perspective, from the optics game I mean it's funny we're talking basically about PsyOps and our own response to that Was fumbling it, so to speak. I think it was a mistake To both warn about TikTok and yet utilize TikTok as a tool. Just my two cents. I think that was a mistake.

Robert Marks Esq:

In March of 2023, the CEO of TikTok, zhao Zichu, faced congressional hearings where he tried to defend TikTok but pushing back on this assertion that TikTok and ByteDance were just tools of the Chinese Communist Party. The bill that in question was actually part of a $95 billion aid package to Ukraine that included this provision In Division D of HR 8038, called the Protecting Americans from Foreign Adversary Controlled Applications Act prohibits the distribution, maintenance or update of an application that is controlled by a foreign adversary in the entire United States, and there's a lot of definitions and exemptions. The biggest exemption, obviously, is that if the company divests US operations to a US-backed business, then they could still operate. Then they could still operate. I think the more interesting aspect, though, is what is considered a foreign adversary-controlled application. Bytedance and TikTok are specifically mentioned. Any subsidiary or successor to those entities are also mentioned, and any entity owned or controlled directly or indirectly by the entity identified in the previous clauses are also included. However, it also expands that to any covered company can be one that is controlled by a foreign adversary and determined by the president to present a significant threat to national security of the United States following the issuance of a public report to Congress. Basically, in effect, this is giving the president an increased power to control what foreign apps we are able to consume and use. You know I hate the term slippery slope, but it does raise some concerns to see how this could be implemented and used long term, but that's another conversation for another day.

Robert Marks Esq:

The biggest thing to act is that in April of 2024, when this was signed into law by president Biden. It required Tik TOK to either cease operations or to divest and sell their U S portion of their business to a US company. Tiktok has since day one said that they would not sell TikTok to anyone and they have fought it tooth and nail. And it was yesterday when the Supreme finally came to its head, when the Supreme Court ruled that Congress has the power and the authority to. To be clear, they're not banning TikTok, they are. They are requiring the company to divest its US operations if it's determined that it's a national security threat and it is being controlled by a foreign adversary. So the Supreme Court didn't actually look at the evidence that poses a national security threat. Because the Supreme Court is saying it's not their duty to do that. Congress has the power to review this national security threat and determine if this is sufficient and then pass the bill and have the president sign. So the Supreme Court saying it's all good, we can do this and they have come Sunday, tiktok shall go dark.

Robert Marks Esq:

And you know this is not commenting on the national security concerns that are being raised by US officials. And again, other countries have banned TikTok for various reasons. There is a legitimate argument about the control of personal information by the Chinese government, and so from a spying perspective, but also from a PSYOP mass disinformation campaign that a foreign adversary could put on a good chunk of the US populace, and I think that's a legitimate concern. However, I would like to raise the one issue of yes, we're recognizing and acknowledging the manipulation of an algorithm by a social media company can be a danger, and I think that's a fair. I think that is a fair argument and a fair discussion to have. But how are we okay, then, with X and Meta and Reddit and whatever other social media site you're consuming, threads Mastodon? Well, mastodon doesn't really have an algorithm. Same thing with Blue Sky to a degree. That's probably why there's a lot of privacy positivity over there.

Robert Marks Esq:

But anyway, I think what this is showing is that we do have a legitimate problem and the question is is this the right solution? I would highly recommend considering the fact that we need better privacy laws in this country as it relates to our online identities. We are working in a world where almost everything is done through the internet, through connected accounts, and this idea that we have these archaic privacy laws are really what is leading us to this overblown conclusion. I always say that serious national security threats can sometimes lead to really bad laws. You know, like, say, after 9-11, when we passed the Patriot Act. You know serious national security threat, terrorism but the Patriot Act, I think, went a little too far in terms of violating our rights and our privacy. And I think the same thing is true here. I think it is a legitimate concern and I think there is a legitimate national security threat that a foreign adversary is manipulating the US population through use of an app. But why isn't the debate and the question how are apps, social media companies, able to do this in the first place? That's the discussion to have. Let's fix that. Let's fix the problem and not just try to ignore a symptom of the problem.

Robert Marks Esq:

This is not me advocating that TikTok should or shouldn't be banned. I mean, I have never full disclosure. I've never actually used TikTok. I've always kind of thought it was weird using a Chinese app that had, I think, legitimate evidence that it was being at least at the very least monitored by the Chinese Communist Party, and it's probably a good idea. You know there's content out there between YouTube shorts and meta reels that provide a similar experience, but again, this is not me advocating for meta or Google or Google. It is funny in that with this, since the Supreme Court ruling and even slightly before TikTok, users were starting to move to another Chinese-based app I'm not going to even try to pronounce it oh, who am I kidding? I love mispronouncing things Zao Hong Shu, which is nicknamed Red Note, which is a Chinese-owned lifestyle platform which users can upload photos and videos, and it's one of China's most popular apps, and this week it has gained 3 million US users, and I think people are seeing it kind of as like the alternative to TikTok.

Robert Marks Esq:

I would like to note, as I've previously mentioned, though, with this new bill, the president has the power and the ability to deem a foreign adversary-controlled app whatever they want, as long as there's public notice to Congress and I think this kind of app is exactly what the statute was considering and it would potentially face the exact same restriction as TikTok if it's not divested, and it will not require another app, excuse me, another law be passed. And to be clear, just so we understand the specifics, there are a few requirements in order for another app to be deemed a foreign controlled app. Let's try that again, shall we Five? Boom, boom, boom. And, to be clear, there is a process involved. In order for an app to be deemed a foreign adversary controlled app worthy of this ban or divestment requirement, first it has to have at least 1 million monthly active users, and Red Note gained 3 million US users within this week, so that clearly satisfied there, there. But then, even then, the president would have to first indicate that this app is a national security threat, and the president would then have to submit a report to Congress detailing that specific national security concern involved. Then the president would have to make a final determination within 30 days of handing over the report.

Robert Marks Esq:

If the president decides that the app should be banned, the company would then have 270 days to divest its Chinese owners or, excuse me, I should be clear not necessarily Chinese owners, but any foreign owners. This doesn't necessarily have to be China, this could be any foreign adversary. And since the law has already been challenged by TikTok all the way to Supreme Court, it will probably be moot at that point and the company will have to make a decision. But as it relates to TikTok, there is some gray area in that the presidency is changing hands on Monday and the incoming president, president Trump, has said that his decision after the Supreme Court decision. His decision on TikTok will be made in the not too distant future, but he needs time to review the situation, so stay tuned.

Robert Marks Esq:

I think what that's signaling is two things. One, I think it would be very unlikely between now and Sunday that TikTok does choose to divest and sell their US interests. I think that they are willing to go dark temporarily and determine A if President Trump will allow them to continue to operate or, alternatively, just test the waters and potentially in a week or two weeks or a month, if they aren't allowed to operate, maybe they will divest and sell their US operations. I think it would be interesting to note that if they're not saved from this ban by President Trump and they have to either go dark or divest, and they choose to just go dark and not sell their company, I do think it does show some strong support to the idea that this was a true national security threat. If they're leaving billions on the table, it's kind of interesting. But maybe not, I don't know. That's just my thought, my two cents, three cents, whatever you want to say to it.

Robert Marks Esq:

I think this whole saga because, to bring it back to a business law perspective, since I am a business law attorney. There are many business owners on TikTok that have made a good living either from content creation or product placement, product selling, product advertisement, marketing. Tiktok has been a valuable asset to many businesses in this country and the fact that their livelihood, if they have invested solely in TikTok, is a threat, is a concern and is a thing, and I'm hopeful that when this ban was passed back in April of 2024, that they started to diversify. And I think this is the best argument you can have, whether it's personal or business, in that these platforms are not our platforms. They are owned by conglomerates, and they are owned by conglomerates and billionaires and communist parties and whatever, and you shouldn't rely on one platform to expand your reach, to show your content, to sell your product. You should diversify.

Robert Marks Esq:

You know I try to post to every microblog site, so I'm not relying on just X, or I was going to say Twitter, but or threads, or Mastodon, or blue sky, or, you know, youtube. Um, I am looking for a alternative to YouTube, especially YouTube shorts. There's a few options out there, but again, that's not for this conversation. But I think that's the lesson here, in that and this is a tale as old as time. Do not rely on one path to glory, to victory, to success. Diversify, and you know, we'll see what happens. But until next time, thanks for listening.