TikTok Sues the US | Can They Stop the Ban? (VL782)

In this episode, Richard Hoeg dives into the legal complexities surrounding TikTok's ban and its implications on freedom of expression and the limits of congressional authority.

Episode Transcript

(01:18):
I was muted.
Can you hear me now?
Hello, and welcome to another episode ofvirtual legality, everyone.
Thank you so much for being here this morning.
I am Hoeg, your host here of the Hoeg BusinessLaw Firm of Northville Michigan, and,
hopefully, We can have a good time today with amicrophone that actually transmits my voice

(01:39):
through the magic of technology and into yourcomputer screens or phone devices or whatever
else you're watching on.
I'm very excited about this particular episodebecause we're gonna be talking about some
interesting things like constitutional law,what congress can and can't do.
Social media platforms like TikTok, and we mayeven have a guest or 2 on this particular
video.
So thank you so much for being here.

(02:00):
I'm sorry for the muting a little bit at thefront end.
Tech issues are always tech issues.
But thank you for bearing with me, and we'regonna get right into it very, very shortly as
we do in virtual legalities.
So just hang on one second.
As we pull up some various screens here and getstarted.
And before we do get into the law at back ofthis.

(02:22):
I did want to call out a special member of thecommunity.
If you've been here with us in virtual legalityor on hangouts and headlines or lawyers and
dragons for a while, You may know the name,Shereen.
She was a constant figure in our community.
She was a mod for legal bites, Alita's channelthat is currently covering the care and read
trial.
And, unfortunately, in the last couple of days,she passed away.

(02:43):
And I wanted to make sure that we acknowledgedto her because when I got out of the hospital
after my stroke, I was finally able to get backon social media and my wife gave me my phone
back and all those good things.
One of the things that I saw first when Iturned on my social media was a direct message
from Shereen the night of my stroke that said,I know you're not gonna see this for a long

(03:04):
time, but I want you to know that we're allsupporting you and we all love you.
And we're looking forward to you coming backand talking with us all in virtual legality.
And she was such a constant support, and shesent mail and and DMs to both me and my wife
during that period.
And even before when we were going through lessdramatic, but still dramatic times on YouTube.
And the world is worse off without her, and Ihope her family, is getting through this

(03:29):
because I I really feel bad when anything likethis happens and certainly She was a light in
this community, and I know in so many othercommunities on YouTube and social media in
general.
So you will be miss Sherine and with that said,I don't wanna belabor the point.
I know you wouldn't if you were watchingeither, Shareen, so let's get into some of this

(03:52):
TikTok stuff.
Tiktok challenges US ban in court calling itunconstitutional says NPR.
And indeed they do.
I like this article because it's pretty muchstraight to the point on this stuff, and I
thought it would be a good jumping off pointfor us to discuss what's happening here.
Before we get into the weeds with statutes andlawsuits and some of the stuff we like to do

(04:14):
here in virtual reality.
So before we do that, TikTok and its parentcompany on Tuesday filed a legal challenge
against the United States over a law thatpresident Biden signed last month, outlawing
the app nationwide unless it finds a buyerwithin a year.
It's actually 9 months with a potential 3 monthextension if the president finds that a sale is

(04:35):
moving forward.
Bannon TikTok is so obviously unconstitutional,says TikTok, that even the act sponsors
recognize that reality and therefore have triedmightily to depict the law not as a ban at all,
but merely regulation of Tic Tac's ownershipaccording to the filing.
The law passed your congress at lightningspeed, which caught many inside TikTok off

(04:55):
guard, is intended to force TikTok to be soldto a non Chinese company in 9 months with the
possibility of a 3 month extension, as we justmentioned, if a possible sale is in play.
Now, notably, NPR here doesn't source past yourcongress at lightning speed, but it certainly
seemed to come fast.
And then they also don't source which caughtmany inside TikTok off guard.

(05:16):
But you can certainly imagine that that was infact the case because TikTok has been operating
on the assumption that the US government mightmove against them at any time Since the time
when president Trump, then president trumptried to ban TikTok from the United States or
at least its ownership by ByteDance, its parentcompany, through executive order back when he
was still president.

(05:37):
Yet lawyers for TikTok state law offers thecompany a false choice.
Since fully divesting from its parent companyby Dan is simply not possible, not
commercially, not technologically, not legally,and certainly not on the 270 day timeline
required by the act.
Now as a mergers and acquisitions lawyer, I cantell you that 9 months actually is a pretty
speedy timeline even for a small company with afairly noble set of assets and liabilities and

(06:02):
understandings that wants to sell a motivatedseller.
So 270 days really is a short period of timefor a massive technology transfer and certainly
one with parameters surrounding it that wouldnot be self selected by either the buyer or the
seller, like Hoeg the algorithm needs to changehands what code needs to change hands.
We'll see that discussed in TikTok's lawsuit injust a minute.

(06:24):
But I certainly think while this is maybe aoverstatement in part by bike dance and TikTok,
it isn't certainly an incorrect or inaccurateone to say that this would be a very
accelerated process to get this done on thatkind of timeline.
Now this article then goes and quotes a fewlegal, experts here.
Anupam Chandra, a law professor GeorgetownUniversity who specializes in technology

(06:47):
regulation said if TikTok loses this legalfight, it will likely shut down in the US.
And I tend to agree.
The problem for TikTok is that they have aparent company that has these obligations in
China, but they're trying to live by freespeech rules by the United States.
The question is whether American courts willbelieve that's even possible.
And I disagree with that analysis to someextent.
I think this will be read more on the blackletter law of whether or not Congress can make

(07:11):
these kinds of determinations for nationalsecurity or other reasons, and we'll see why
that is that issue in just a minute, but Idon't think the court system is either equipped
or desirous of adjudicating whether or not thisparticular company can abide by multiple
jurisdictions sets of speech rules andregulations.
The real question is whether or not Congresscan ban platform that operates with a certain

(07:35):
amount of Chinese or other country ownership.
And that is going to be an open question, whichwe will see in just a sec.
Tiktok says law is based on speculative andanalytically flawed concerns.
Here's one place where I think tiktok goes afar in their complaints.
Lawmakers in Washington have long beensuspicious of TikTok, fearing its Chinese owner
could use the popular app to spy on Americansor spread dangerous disinformation.

(07:58):
But in the company's legal petition, lawyersfor TikTok say invoking national security does
not give the government a free pass to violatethe first amendment.
Especially TikTok argues when no publicevidence has been presented of the Chinese
government using the app as a weapon againstAmericans.
Now when I say that go a little bit far here isthey are absolutely correct that national
security as a statement from the congress orthe government or else wise does not get them

(08:22):
out of the application of the first amendmentor any of the bill of rights or any other
restriction that the government has on the,exertion of its powers But the fact that
congress didn't include recitals in its statutethat says this is why we're angry at TikTok.
This is why we think it's a problem.
Or has shared public information that's nototherwise classified doesn't limit their

(08:42):
ability to pass a law like this Right?
They could come to court and say, sure.
We didn't say it in advance.
We didn't put it in the statute, but here's theevidence.
Here's why we acted the way we did.
And the reason that will come up is becausewhenever we talk about infringement of a
fundamental right like the first amendment,freedom of speech, then one of the things that

(09:02):
a court will have to determine is whether ornot the government had a compelling interest in
infringing on that particular right.
And you might say that all of the bill ofrights says congress shall not otherwise
infringe and that this is a strange thing to besaying, Rick, that the court will adjudicate
whether or not there was a compellinggovernment interest, but Court jurisprudence
has essentially allowed certain governmentinfringements regardless of the text of the

(09:26):
constitution if the government can make astrong enough case.
Now that being said, That strong case has to bereally strong.
The policies that they put in place to do theinfringement have to be narrowly tailored to
that specifically compelling interest and wecall that strict scrutiny the courts do when
they evaluate a statute and whether or not itshould be deemed constitutional for these

(09:46):
purposes.
And strict scrutiny for the most part is alevel of scrutiny that the court applies and
statutes fall.
When they do apply that level of scrutiny.
Right?
So one of the things that will happen in thiscase is that TikTok will try to say that this
is a direct infringement of our first amendmentrights and that requires strict scrutiny of the
courts because they know that the courtsgenerally strike laws down when strict scrutiny

(10:08):
is applied.
And Congress will try to say, no.
No.
Not a direct infringement of their firstamendment rights.
It's a regulatory concern.
It's an economics regulation.
We have national security at play here, so thisshould have a less level of scrutiny applied to
it, and at lesser levels, the court will veryoften defer to congress's overall general
authority to pass legislation within the UnitedStates.

(10:31):
According to the filing, the law is based onspeculative and analytically flawed concerns
about data security and content manipulation.
Concerns that even if grounded in fact could beaddressed through far less restrictive and more
narrowly tailored means, and that's that otheraspect strict scrutiny that we just talked
about.
Right?
Even if you have a compelling governmentinterest under the strict scrutiny level of
evaluation by the courts, that compellinginterest, the answer to the compelling interest

(10:55):
has to be narrowly tailored to addressingwhatever your interest is.
And here, TikTok says, okay.
Not only do they not have a compelling interestor they haven't shared it with us, but if they
did banning us from operating within theirjurisdiction is way too big of an answer, It's
a shotgun when a scalpel will do.
Constitutional scholars say there are a fewways for the government to restrict speech in a

(11:16):
way that would survive a legal challenge.
One of those ways is if the government candemonstrate a national security risk.
And so far as it would be a compelling stateinterest, yes.
Also key, legal per se is the governmentshowing that speech suppression was the least
restrictive option on the table.
And that's a paragraph that kind of takes whatwe just talked about with respect to strict
scrutiny and makes it a little bit moreambiguous than it needs to be, but those are

(11:37):
both true.
Right?
They need to show a compelling interest, andthey need to show that it was tailored to that
compelling interest.
TikTok said Congress ignored less restrictiveways.
We'll see that in their lawsuit and also saidit's not plausible for them to divest.
You can't really create a TikTok US whilehaving a different company managed TikTok
Canada says they're expert.
What you're doing essentially is creating arival between 2 TikToks.

(11:58):
It may be better to take your marbles out ofthe United States and Hoeg money outside of the
US rather than sell it at a fire sale price.
And this actually says part of the quiet partthat tiktok doesn't say so much in their
lawsuit, which is to say it's not that it'simpossible for TikTok to sell.
It's that the product that they would beselling, TikTok US is so devalued from what the

(12:18):
asset would be in an operational ongoingconcern that they didn't want to sell it.
They don't wanna sell it in that form becausethey are evaporating the be that they hold in
this thing that they've built.
At least that's their argument.
Right?
And I don't pretend to be a financial analystor one that knows the value of TikTok on its
own versus the value of a US based TikTok only,but that is certainly part of the argument that

(12:40):
they make when they say that it's not plausiblefor them to divest.
Now in point of fact, I don't think theyactually have to win that particular argument
that it's not plausible for them to divestbecause I think that the divestiture provision,
the ability for someone to get outside theparameters of this law that the United States
just passed by selling off all their interestin a company doesn't make it a non penalty.

(13:00):
Right?
It it's it's not that you could sell and youdidn't.
And so now that they can bring the full forceof the statute against you, The fact that the
sale requirement is made is the penalty in andof itself.
So there's an old precept in US jurisprudencethat says the powered attack is the power to
destroy.
And I've always liked that particular line, notbecause I like to talk about taxes or

(13:23):
destruction necessarily, but because It is anotion in US jurisprudence, I think, is very
true.
Once you have the authority to really put painpoints on somebody operating within your
jurisdiction, whether that's United States orsomewhere else, you essentially have the power
to make it unpalatable in its entirety tooperate within that jurisdiction.
So when they talk about they can't sell andit's a illusory kind of out.

(13:45):
That's helpful for them from a rhetoricalstandpoint, but I don't think it's necessary
from a legal standpoint, even if they couldsell and it wouldn't scuttle their entire
business operations.
It's still not something that they should haveto do if the court finds that this is an
overreach by the US government.
Congress has never before passed legislationthat could outright ban a wildly popular social

(14:06):
media app, a gesture the US government hascriticized authoritarian nations for doing.
And here's the NPR editorializing a little bitinterestingly against the US government's
position.
In this case, however, lawmakers have calledthe app a spy balloon on your phone,
emphasizing how the Chinese government couldgain access to the personal data of US
citizens.
Yet the fears so far remain remainhypothetical.

(14:27):
There is no publicly available example of theChinese government attempting to use TikTok as
an espionage or data collection tool.
And here I'm gonna sit here and say we don'tknow what we don't know with respect to
classified intelligence.
Right?
We don't know what congress is acting on withrespect to some of the information that they
might have.
So only we can evaluate this as TikTok hassuggested with what is publicly available.

(14:49):
But we do have to at least reserve for thepossibility that if this were to go to trial
that Congress could show legitimate concernsover national security or personal data of the
United States going to places where they reallydon't want it to go.
And if they can show that, then their theircase is gonna be much stronger than it looks
right this second.
TikTok for its part says it has invested$2,000,000,000 on a plan dubbed Project Texas

(15:12):
to separate its US operations from its Chineseparent company.
It deleted all the Americans data from foreignservers and relocated all the data to servers
on US soil overseen by the Austin based techcompany, Oracle.
While the plan was intended to build trust withthe US, lawmakers, and users, reports surfaced
showing the data was still moving between staffin California and Beijing.

(15:33):
In the filing on Tuesday, TikTok said itsubmitted an agreement to the committee on
foreign investment in the United States orCFIUS to lawyers, which has been probing the
app for 5 years that would allow the US tosuspend TikTok if it violated terms set forth
in a national security plan.
But lawyers for TikTok say the deal was sweptaside in favor of the politically expedient and
punitive approach the petition states.

(15:53):
I don't know if you need any of the lawyers sayin petition states in the same sentence, but I
am not the journalist here.
Despite the new law giving TikTok the ultimatumof selling or being shut down, There are many
questions around how the app could even bebought by another company or group of
investors.
Former treasury secretary Steven Munchen toldNPR on Monday He's planning to assemble a group
of investors to try to purchase TikTok withoutthe apps algorithm.

(16:15):
Moon Chen, who dis who declined to answeradditional questions, said in between sessions
at the Milken Institute Global Conference inLos Angeles that the proposal to buy the app is
still in the works, but he would not say whenit would be formally submitted.
And here was where we get real politics cynicalhere in virtual legality.
Right?
I don't know Steven Munchen.
I don't know the conversations that were had atcongress behind the scenes with respect to this

(16:37):
ban, but certainly when you see that the formertreasury secretary is trying to put investor
group together, to buy a US TikTok with orwithout the algorithm at potentially a lower
price than the operational ongoing concernwould be, it starts to look a little bit like a
shake down.
Right?
And you might hate TikTok.
You might think that it's a major risk, becauseof the Chinese connection of ownership through

(16:58):
TikTok.
But this starts to look like a US government orformer US government official shakedown to a
company's value.
And I think that's a problem.
Even just optically, when you're consideringhow this thing looks.
And I think that might wind up coming up in anypossible court case that happens here.
Despite the new law in the US, BiGHAN says itdoes not intend to let go of the service.

(17:19):
Furthermore, winning the support of China wouldbe necessary and officials in Beijing are
adamantly against any forced sale.
As you would imagine.
In 2020, amid the Trump administration'sclamped down on the app, China added content
recommendation algorithms to its export controllist effectively adding new regulations over
how TikTok's all powerful algorithm could everbe sold.

(17:40):
ByteDance, not TikTok, developed and controlsthe algorithm that determines 1,000,000 see on
the app every day.
And here's where things get a little bitconfusing because TikTok is just a platform
TikTok, say product.
Right?
TikTok isn't its own separate thing.
There is a TikTok Inc that operates certainaspects of the platform, but this is an area
where TikTok is going to complain in itslawsuit that Congress did not properly identify

(18:01):
the various bodies trying to penalize becausethey just use the words tiktok rather than an
actual operating entity.
The technology has become the envy of SiliconValley, and no US tech company has been able to
dislodge TikTok's firm hold on the short formvideo market.
Experts say key to its success is it's highlyengaging and hyper personalized video ranking
algorithm.
And here's where I say I don't use TikTok.

(18:21):
I use Twitter, and therefore, you tab is godawful.
So, certainly, Some of these platforms arehaving trouble actually having a 4 u algorithm
that works presumably as well as TikTok does,but some of you in the comments might be better
able to speak to the TikTok experience and whyit is as popular as it is.
The algorithm which involves millions of linesof software code developed by thousands of

(18:43):
engineers over many years cannot be easilytransferred to the US even if China did allow
it to tuck's challenge states and they go alittle bit further in in talking about that.
We will see that in their lawsuit But that'sthe overview of what's happening in this
particular state of affairs, and we're gonnatalk about it more specifically as we do here
in virtual legality with the primary sourcematerial.
Before we do, I also wanted to mention that ifyou haven't seen it, David Grace, who is our

(19:08):
Game Master in Lawyers and Dragons, has beendoing more topical videos on his channel,
prototypes on YouTube.
And one of those topical videos should go livemaybe today, tomorrow.
I don't know when exactly is a conversationthat David and I had on this specific issue on
an article talking about the TikTok ban and theTikTok challenge.

(19:28):
And I highly recommend you check it out.
I think it was a good conversation if and whenit goes live.
And hopefully, David will pop in at some pointso that we can talk about that and what he's
doing with prototypics on this video on theHoeg, but I wanted to make sure that that was
mention because you should check it out when itgoes live.
I think it's a very good conversation,especially if you wind up liking this virtual
reality conversation here.

(19:48):
So With that said, let's look at this petition,which I have right in the middle, which is not
terribly useful to us, but this is the lawsuitthat tiktok inc and ByteDance Limited have
brought against the United States or morespecifically Merrick Garland as the attorney
general of the United States.
A petition for review of the constitutionalityof protecting Americans from foreign adversary
controlled applications act, which is amouthful.

(20:12):
Congress has taken the unprecedented step ofexpressly singling out and banning TikTok.
A vibrant online forum for protected speech andexpression used by 170,000,000 Americans to
create share and view videos over the internet.
And, obviously, this section of the lawsuit isgonna be very positive about what TikTok is
doing and it's gonna be very kind ofpolitically editorializing about how tiktok

(20:34):
feels about this as we see at the top of allthese lawsuits.
That law protecting Americans from foreignadversary controlled applications act is
unconstitutional.
Baying TikTok is so obviously unconstitutional,in fact, that even the act sponsors recognize
that reality and therefore have tried mightilyto depict the law not as a ban at all, but
merely a regulation of TikTok's ownership.
Right?
If you actually go and you look at how this lawwas passed, it was at it was passed under the

(20:59):
power of congress under the commerce laws inthe constitution, which gives congress the
power to pass laws governing and regulatinginterstate commerce among the various states
and international bodies in the United Statesand around the globe.
So they say, well, look, TikTok is commerce.
You make money.
It's a commercial endeavor.
We can control it.
But all the rest of the restrictions that comeinto play in the constitution do happen like

(21:21):
the first amendment, and that's where tiktokwants to wind up.
They wanna say, well, In this particular case,you are not just banning a random economic
product.
You're banning something that is fundamental tothe expression of the speech, both by us,
TikTok, and by the users of our platform.
Banning TikTok is so obviouslyunconstitutional.
They say that they can barely pick how they'regoing to argue against this, but there's a lot

(21:44):
of ways that they find in their seventy pagedocument.
In reality, there is no choice to divest thecompany.
The qualified divestiture demanded by the allowTikTok to continue operating in the United
States is simply not possible.
Of course, even if a qualified divestiture werefeasible, the act would still be an
extraordinary and unconstitutional assertion ofpower.
If upheld, it would allow the government todecide that the company may no longer own and

(22:07):
publish the innovative and unique speech Beachplatform it created.
If Congress can do this, it can circumvent thefirst amendment by invoking national security
and ordering the publisher of any individualnewspaper or website to sell to avoid being
shut down.
So here we see tiktok arguing kind of theslippery slope.
Right?
If Congress can just declare national securitywith a neon sign, and do anything at once and

(22:29):
violate the 1st amendment, then TikTok is thefirst of your concerns, but not the last of
your concerns, your honor.
Congress can do this to anybody, and we verymuch don't want congress doing this to
newspapers or individual websites and thosekinds of things.
There are good reasons why Congress has neverbefore enacted a law like this.
Consistent with the first amendment's guaranteeof freedom of expression, the United States is

(22:49):
long champion to free and open internet supremecourt has repeatedly recognized that speech
conveyed over the internet fully qualifies forthe first amendment's protections.
There's really no doubt about that.
And consistent with the fundamental principlesof fairness and equal treatment rooted in the
bill of a tinder clause and the 5th Amendment,Congress has never before crafted a 2 tiered
speech regime with one set of rules for onename platform and another set of rules for

(23:11):
everyone else.
So it's about time that we talk about bill ofattainder, which is not a place where Bill
lives.
It's an old timey phrase that described theability of, at that point, the English common
law justice system to pass laws that penalizedupon death individuals by name without a

(23:35):
separate finding of a violation of the law.
This also goes along with the x post facto lawconcept, which is naming something as illegal
after the act took place.
And the reason our constitution, says no billof attainder or expos facto law shall be passed
is because those are both fundamentally unfair.
They are against our notions of fairness andjustice, right, to say you are so bad that we

(23:59):
know without a trial, without due process,without going through our normal judicial
procedure that you are bad enough to bevialative of this law that we pass.
We say, you can't steal cars.
And, also, we know Rick Hoeg is a car thief Andso you can't steal cars and Rick Hoeg is
automatically a car thief that can be put injail or have whatever other penalties are

(24:20):
applied to a car thief upon him.
Similarly, that you can't say in a law that youpass that it's generally applicable in this
way, but also we know for a fact that thiscompany is violating it beforehand.
And so we're gonna name them, and that's what abill of attainder is.
Supreme court cases have given broad andgenerous meaning to the constitutional against

(24:40):
bills of attainder by interpreting it to bannot only legislation imposing a debt sentence
as the term was used at English common law, butalso legislation that imposes other forms of
punishment on specific persons without trial.
And before we get too far into this, I do wannapoint out this is from a constitution
annotated.
This is a document been in publication for overa 100 years, was ordered by Congress to be

(25:02):
created by the librarian of congress to compileand periodically update constitution annotated
to provide essential information to Congressand the public at large.
So this is a good source of materials for howthe constitution has been interpreted over the
long history of the country at this point, butit's also worth noting that this is the kind of
thing that Congress should very well know.
However, the court has emphasized thatlegislation does not violate the bill of

(25:26):
attainder clause simply because it places legalburdens on a specific individual or group.
Rather as discussed in more detail below, abill of attainder must also inflict punishment.
Another key feature of a bill of attainder isthat it applies retroactively.
The cream the Supreme Court has held that thebill of a tender clause does not apply to
legislation that is intended to prevent futureaction rather than to punish past action.

(25:48):
Overall, the Supreme Court's decisions suggestthat the court has applied the bill of attainor
clause to prevent legislatures fromcircumventing the courts by punishing people
without due process of law.
And then we continue on.
The Supreme Court applied the constitutionalprohibitions on Bill of Attander in a pair of
Reconstruction era cases, ex party Garland, andCummings versus Missouri.
Garland concerned a federal statute whileCummings involved a post civil war amendment to

(26:12):
the Missouri constitution, but both of thechallenge provisions required persons engaged
in certain professions to swear an oath thatthey had never been disloyal to the United
States.
In both cases, the court held that the effectof the challenge provisions was to punish a
group of individuals who had been disloyal tothe United States and the punishment they faced
was effective exclusion from the coveredprofessions.
So, no, this isn't named individuals.

(26:32):
This is a class of individuals.
That are being asked in order to get theirlicense to practice whatever profession that
they are, that they are have never beendisloyal with the United States.
Punishing them for having been disloyal in thecase of the US civil war, which was recently
concluded at that point in time.
Based on the holding, the Supreme Court invalidprovisions as unconstitutional bills of a

(26:52):
pander.
In Cummings, the court noted that thechallenged state constitutional provisions did
not expressly define any crimes or declare thatany punishment shall be inflicted, but they
produced the same result upon the partiesagainst whom they are directed as though the
crime crimes were defined and the punishmentwas declared.
So here, what's important to note is thatbecause the bill of attainable rule is so easy

(27:13):
to avoid that congress really isn't in thehabit of naming company or naming individuals
because they know that that's not allowed undertheir constitutional powers that the Supreme
Court precedent on this topic actually goesbeyond that to say if this is something that is
a class of people that that's generallydescribed, that you can take under advisement
that they will be punished in a way that theydon't deserve to be without due process of law.

(27:38):
And so Congress can't pass a law like this one.
And here we have David Grace.
We just talked about your wonderful panelproduct topics, David.
Wonderful.
Channel.
I it's wonderful to be here.
I'm sorry that I'm I'm late.
But happy to be here just in time.
I was just starting my TikTok dance career.
I know it.
I know it.
And and you've got that TikTok Cadence down.

(28:00):
Right?
If you have never watched David's channel, hedoes some of those cool videos where he edits
himself in different clothes and looks at thecamera from different angles and talks to
himself, like I see when TikTok videos surfaceon Twitter.
So I can't pretend to be the, the foremost,understander of TikTok or other social media
culture.

(28:20):
But David, you seem to have your finger on the
I well, you know, it's I I'd like to say it'sgently inspired more from, like, old SNL than
it is trying to keep up with TikTok of of,like, the costume changes, but, Yes.
The tick tockification of attention spans onsocial media is, on the bleeding edge and
something we gotta keep track of to keep tokeep user attention.

(28:42):
There
you go.
And that's why Challenge.
Folks, I'm in the business of making multiplehour long legal deep dives because I am on the
opposite of the bleeding edge.
But we're happy to do it here in virtuallegality.
And, David, you just came in time to talk aboutbills of attainder, which I know is one of your
specialities and expertise.
Right?
I I happen yes.

(29:03):
Here at, law, Mueller King University, that iswhat we focus on.
Yes.
So we were just going into the fact thatbecause the constitution bars Congress from
essentially naming and shaming people orinstitutions, Congress has, for the most part,
in the United States history avoided doingthat, by making things applicable only to
classes or groups of people In this case, rightafter the civil war requiring specific

(29:27):
professionals to declare that they have neverbeen disloyal to the United States and if they
can't to not be allowed to to practice theirprofession, and the Supreme Court held that
without the specific name and shame to be aviolation of the bill of attainder clause
because Congress knew what it was doing andknew that these particular people would be
unable to make that declaration.
The provisions aimed at past acts and notfuture acts were intended to operate by

(29:49):
depriving such persons of the right to holdcertain offices and trusts and to pursue their
ordinary and regular advications.
The court held that this deprivationconstituted a punishment and that the purported
option to avoid the restriction by swearing aloyalty oath did not make it less so.
Make the enjoyment of a right dependent upon animpossible condition is equivalent to an
absolute denial of the right under anycondition, and such denial enforced for a past

(30:12):
act is nothing than punishment imposed for thatact.
Right?
And the biggest issue that TikTok has withrespect to the bill of attainder concept here
is that because Congress didn't provide anycontext for why TikTok and bike dance are
specifically named in the statute as we willsee in just a minute, They don't actually have
the tie bar to say this is what act they'retrying to punish.

(30:33):
Right?
There isn't a loyalty oath kind of concepthere, but In some ways, it's worse because
TikTok and ByteDance are named without anyindication of why.
That's honestly a worth a worse punishment, andthat's what TikTok will argue in their
particular lawsuit.
In the 1946 case, United States versus Lovett,the Supreme Court struck down as a bill of

(30:53):
attainder, An appropriations bill cutting offthe pay of certain named federal employees
accused of being subversive.
The court explained that the challengelegislation effectively declared specific
persons guilty of crime of subversiveactivities without the safeguards of a judicial
trial.
The legislation further permanently barredthose persons from government service, which
qualified as punishment, of a most severe type.

(31:14):
Similarly, in the 1965 case United Statesversus Brown, the court held that a federal
statute making it a remember the CommunistParty to serve as an officer of a labor union
was a bill of attainder.
The Brown Court skewed a rigid historical viewof the bill of attainder clause explaining that
the clause was intended not as a narrowtechnical prohibition, but rather as an
implementation of the separation of powers, ageneral safeguard against legislative exercise

(31:36):
of the judicial function or more simply trialby legislature.
Right?
So thinking about this from the US kind ofcivic standpoint, the legislature is supposed
to write laws of general applicability and thenlaw enforcement, the executive branch, or more
down on the street law enforcement, is supposedto bring potential case is violations of that

(31:56):
law of general applicability before thejudicial branch.
If Congress says this thing is illegal and weknow this guy is guilty of that thing, then
that is a potential problem under the bill ofattain your clause.
The court concluded that Congress had exceededthe authority granted bid by the constitution
in enacting the challenge statute becauserather than creating generally applicable rules
for the courts to apply, the statute designatedin no uncertain terms, the persons who possess,

(32:21):
Feared characteristics and therefore cannothold union office without incurring criminal
liability members of the Communist Party.
So when we look at the law that we're about tolook at right now, it's important to keep this
kind of bill of attainder concept in mindbecause in my opinion, even though the TikTok
lawsuit is leading with kind of the 1stamendment flavoring to their particular

(32:44):
complaint against this law, where their actuallegal argument lies is on a violation of the
bill of attainor provision of the constitution.
So let's take a look at this law and see how itis written.
So we've got the protecting Americans fromforeign adversary controlled applications act,
which I should point out is an act that isbaked into a much larger set of various

(33:06):
political things that are happening in what Ithink is like the peace through strength act,
which is as Americanly named as can possiblybe.
But we've got this particular act regardingTikTok baked into that much longer document.
So as we look at this, I I think it's importantto note.
We've got a prohibition of foreign adversarycontrolled applications.

(33:27):
It should be unlawful for an entity toessentially help a foreign adversary controlled
application by carrying out in the UnitedStates any of the following, providing services
to or providing internet hosting services forthat particular foreign adversary controlled
application, which, of course, poses thequestion to anybody reading this, what the heck
is a foreign adversary controlled application?

(33:49):
So we have to go past the exemption for sellingit within the 9 month period down to the
foreign adversary controlled application, whichis a website application, mobile application,
or augmented, or immersive technologyapplication that is operated directly or
indirectly by any of bike dance limited,TikTok, a subsidiary of or a successor to bike

(34:15):
dance or TikTok that is controlled by a foreignadversary.
We'll come back to that in just a second, or anentity owned or controlled directly or
indirectly by an entity identified in any ofthose or a covered company that is controlled
by a foreign adversary and that is determinedby the president to present a significant
threat to the national security of the UnitedStates following the issuance of a public

(34:36):
notice proposing such determination and apublic report to Congress submitted not less
than 30 days before such determination.
So You can see what ByteDance and TikTok aregetting at here.
This part, the covered company part is the reallaw.
Right?
The foreign adversary controlled application isan a company that is controlled by a foreign

(34:57):
adversary that is determined by the presidentto present a significant threat to the national
security of the United States following thingslike a public notice and a report to congress,
or it's anything operated by bike dance orTikTok.
And that to me, as a lawyer that learned aboutbills of attainder long ago in law school,
looks very much to me like a bill of attainder.

(35:19):
And usually, Congress is good to not name thesethings.
And in fact, when David asked me to researchthis for purposes of the conversation that we
had and will be showing on his channel, when Ilooked at this for the first time, I said, oh
my god.
They actually wrote the names in the statute.
This is like one l issues of constitutional.
Right?
This is this is what you avoid pretty easily.

(35:39):
There should be somebody in the congressionaloffices saying, no, you can't name them that
way.
You you could absolutely try to describe themso that they're the only ones that are
included, which is part of what's difficultwriting statutes, but you can't just say
anybody, that is seen by the president as athreat to national security.
Or ByteDance or TikTok.
And then we also note here that forcongressional statute, this is a pretty big

(36:00):
foot fault itself.
TikTok is not a separate entity.
Right?
So any of Vicance or TikTok, that's just aplatform.
And so one of the things that TikTok winds upsaying in its lawsuit is we assume Congress
meant TikTok Inc.
And so we're including them as a party here,but they're a wholly controlled subsidiary of
ByteDance anyway.
So they'd be included in the ByteDance ownedpiece period, but we think this is a violation

(36:22):
of our due process because every other companyhas this right here, and we don't get it no
matter what we operated, we could operate anice cream stand platform, and it would be a
foreign adversary controlled application eventhough everything else needs to find a threat
to the national security of the United States.
And TikTok says that's not fair, your honor.

(36:42):
And I'm inclined to agree with him as somebodythat doesn't use TikTok, and doesn't have much
in at stake in this particular band.
I think that they've got a point when they saythat.
And they will be saying that for many, manyparagraphs to come, many of which we will skip
because it's a seventy page document.
But I also wanted to point out one other footfault that Congress has in this statute which
is this exclusion right here, the term coveredcompany does not include an entity that

(37:05):
operates a website, desktop application, mobileapplication, or augmented or immersive
technology application whose primary purpose isto allow users to post product reviews,
business reviews, or travel information, andreviews.
Right?
So remember, covered company is the main waythat you get into if you're not bike dancer,
TikTok, this particular category of problemswhere you're banned from operating in the
United States but it does not include not justa platform that is primarily for the purpose of

(37:30):
product or business reviews or travelinformation to reviews.
But any company that operates in, websitedesktop application or augmented or immersive
technology application whose primary purpose isto allow users to post product reviews.
So as TikTok will point out in their lawsuit,and I don't know that I highlighted that
section in particular, when we get back to it,as as TikTok points out in their lawsuit, This

(37:51):
will allow specifically a foreign adversarycontrolled application to work in the United
States if the company that creates thatapplication also has a travel review
application of some kind.
And that's another violation of their dueprocess rights because Vicance and TikTok can't
do that.
I can't even specifically just do travelinformation reviews because anything that they

(38:13):
make is automatically a violation of this andautomatically outlawed from being operative in
the United States unless they sell within this2 100 and 70 day period.
It's also worth noting that the originalversion of this bill had an a 180 day period
here, which would have been even more draconianthan this 270 days.
And the original bill didn't have this 90 dayextension period.

(38:33):
So you can see if you would look at these billstogether that congress is trying to be a little
bit more generous in the way that they'veframed this particular exemption.
They're trying to get it outside of thislawsuit land.
And make it more likely that TikTok just getsout.
Right?
There's a certain notion reading between thelines here that Congress doesn't necessarily

(38:53):
believe that this will pass constitutionalscrutiny, but that if they give a big enough
window and they make it attractive enough toTikTok, then maybe TikTok just says we don't
need this lawsuit.
We'll just sell This isn't worth our time orour trouble.
I don't think that's gonna happen in thisparticular case, but you can see that that
could be some of the thought process that'shappening.
I think the bigger problem of course, is namingbike dance and TikTok completely separately

(39:15):
from everyone else that they want this to applyto.
And TikTok is rightly kind of upset about thatin the lawsuit that we've taken a look at
already.
Right?
David, did that all make sense to you?
Well, so playing other side of that, you know,because it was a bipartisan vote in Congress.
And and it was like an overwhelming movement,but to do something that sloppy, would there

(39:36):
have been is it not sloppy.
Is there a way that you could look at it fromtheir side of the argument that this was
intentional for a reason, and we will winbecause of that?
Well, I think that the the strongest argumentis that you aim it specifically at those people
because you wanted to hit them and nobody else.
And the problem with statutes is that they canbe over or under but the reason you don't have

(39:57):
bills of attainder is because you're notsupposed to adjudicate someone is violent in
advance on the legislative side.
I think more importantly for the it happened sofast and was so overwhelmingly approved, as
part of this argument is that let's say that itis unconstitutional.
Let's say this is struck down by the courts.
There's nothing really preventing congress fromtaking another bite of the apple from giving it
another go and correcting whatever things thecourt identifies as problematic.

(40:20):
So, right, if you're a TikTok fan, and you'relooking at the current state of politics in the
United States and you say, well, Rick atvirtual legality says that this could be a
problem under constitutional, jurisprudence,That's right.
But Congress is still in charge of thelegislature is still in charge of the laws.
They could amend this statute.
They could write another one that just saysthe, you know, they call it the complying with

(40:41):
that moron judge that struck down the last lawact, and they write it the way that the judge
asks them to write it.
So if there is still that kind of overwhelmingdesire to have TikTok removed from the United
States, or removed from bike dance ownershipand operate within the United States, then you
would assume that this could be corrected bythat same legislature in the future, but

(41:01):
politics doesn't always work that way.
Right?
It could be when this goes down again in 9months or 12 months, that the congress has
different feelings closer to an election thanit did when it originally passed this.
That separated out from this whole omnibus billabout national security, that it could be a
different ball of wax for those particularcongressional members that voted for it the

(41:22):
first time.
If your TikTok, it's still worth pursuing this,but, yes, the real politic at the end of the
day is when you pass, like, 300 to 90 orwhatever that first vote was, you do have a
worry that they're just gonna change the wordsa little bit and you try it again.
Right.
So there really is no hope for for TikTok evenif I mean, in a lot of ways, even if this goes

(41:42):
through and even if congress sitsunconstitutional, they really could just reload
the gun.
Well, con Congress always has that option.
Right?
And we see that a lot with respect to courtdecisions that Congress disagrees with.
Co court decision that says, well, you can't dothis this way and congress should have done it
this way.
Congress passes a new law the day after thecourt decision comes out.
That's how congress is supposed to operate andrespond to these various things.

(42:05):
So there's nothing really wrong with that inthe legal process.
Certainly, if you are kind of targeted likeTikTok is, you're probably over this whole
thing, and we can see that kind of in the toneof the first couple of paragraphs of this
lawsuit, but I wanted to definitely frame outfor folks what a bill of attainder is why and
how they're prohibited under the constitutionbecause I think that's a very important part of

(42:26):
this conversation.
And honestly, it's not one that has talkedabout a lot because for the most part, Congress
is usually smart enough to avoid naming andshaming people on an individual basis.
So this is unusual.
It's one of the reasons why I was reallyexcited about talking about it with you, David,
was that it's very rare that we get to use someof this precedent because for the most part,

(42:46):
it's it's settled law.
These are these are not things that are, easyto have foot faults on in congress.
So, yeah, I think it was too fast.
I think it was so fast because there is thatkind of bipartisan support for the notion that
TikTok could be a very bad thing.
But one of the things I've talked about a lotin virtual legality is the one thing that
politicians of all stripes seem to be able toagree on is that social media, internet

(43:08):
technologies, and tech companies in general aregathering enough power that they are a certain
amount of threat to the political class on thewhole, which is why you see Republican and
Democrat agreement on this.
This is why you see a story in TikTok whereTrump tried to ban it when he was president and
now Biden is trying to ban it while he'spresident.
Right?
Obviously, very 2 different sides of thepolitical spectrum in the United States, but

(43:32):
still see TikTok is a problem because why theythey have so many eyeballs on them and they can
control so much messaging that the politicians,I think, rightly look at that and say that's a
threat to whatever type of messaging we wannaput out there, whatever type of thing we wanna
do with our political bodies.
I I just wish that when it comes to havingthese hearings where they're they're asking

(43:52):
questions of Zuckerberg and and of ofByteDance, the the the people asking questions,
the congressman, the senators, when it whoeverit is, I just wish they knew what they were
talking about.
You know?
Yeah.
You would
Just TikTokening to WiFi.
Why does TikTok connect to WiFi?
You don't know what you're talking about.
Those are the wrong questions.
I am not a cat.

(44:12):
Yes.
It it is roughly the I am not a cat level ofinquiry here.
And I I've I've long talked to folks here in mycommunity about the fact that one of the
reasons I became a lawyer was that I watchedthe senate hearings about night trap and Mortal
combat back in the nineties and said to myself,somebody needs to get an understanding of
statutes and lawmaking and video games and popculture that is better served than these people

(44:37):
that are on my TV screen that could otherwiseban things that I enjoy.
So that's a part of the conversation,certainly, is that our our political class is
more of the older variety, as we know from ourpresidential candidates coming up, but also
just across Congress on the whole and that theytend to look at these things and TikTok I think
rightly says, basically, Congress is scared ofthe fact that there's some Chinese ownership of

(45:01):
TikTok, and that's basically all they've toldus.
Congress enacted these extreme measures withouta single legislative finding.
Even the statements by individual members ofCongress in a congressional committee report,
merely indicate concern about the hypotheticalpossibility that TikTok could be misused in the
future without citing specific evidence.
And again, I say TikTok goes a little far herebecause they don't have to cite that specific

(45:22):
evidence in the statute that can present thatevidence as part of this legal challenge.
But TikTok is right to say, hey.
Look.
We're just operating here.
They haven't told us anything.
And if TikTok is in the right and that they'renot, you know, secretly taking your data and
sending it to Beijing, then they are looking atthis as a congress that's going far beyond the

(45:42):
pale.
Now if you think TikTok is actually a front forthe Chinese Communist Party, and they are
sending that data, then this all looks like somuch hand waving in and of itself.
Right?
So Congress is going to have to essentiallyprove its case that there's a compelling state
interest here at some point, but even if theycan, and the first amendment versus national
security is one of those areas where the courtit's unclear which way they would go, Although

(46:05):
there's often a deference to national securityconcerns for legislatures, that bill of
attainder, the way that the statute is writtenis probably the better argument as it stands
right this second.
Nor, is there any indication that Congressconsidered any number of less restrictive
alternatives, such as those that petitionersdeveloped with the executive branch after
government agencies began evaluating thesecurity of US user data and the risk of

(46:27):
foreign government influence over theplatform's content as far back as 2019.
And that's when the Trump administration startsto ask about TikTok and Chinese ownership.
As part of this engagement petitioners,petitioners being TikTok here, have voluntarily
invested more than $2,000,000,000 to build asystem of technological and governance
protections, sometimes referred to as projectTexas, to help safeguard US user data and the

(46:47):
integrity of the US TikTok platform againstforeign government interference or influence.
And we see this referenced in the NPR articlethat we started this video off with.
We also noted that they said that there werereports that some data was still going from
Texas to Beijing.
So again, it's it's kind of a Hoeg said shesaid between governments between China and the
United States between TikTok and what it'sdoing publicly and what it might be doing

(47:11):
privately.
And that's worth noting because Congress couldhave a case here.
As I said at the top of this video, We don'tknow what's classified.
We don't know what we don't know on this, butas it stands right this second, it's a little
bit unclear as to why Congress has otherwiselabeled tiktok and bike dance enemies of the
state quite literally.
Congress tossed this tailored agreement aside.

(47:33):
When we see this language that I highlighted inred is tailored, because as we said, strict
scrutiny requires a narrowly tailored solutionto a compelling state interest.
And so they're saying, look, we've been talkingwith the executive branch.
We've been talking with the US government.
We have been working on a narrowly tailoredprovision that would say, hey.
Look.
If we actually steal data, if we actually dosome bad thing, that we can agree to as part of

(47:54):
a national security arrangement, then you cando very bad things to us, but instead they came
in with the nuclear bomb approach rather thanthis narrow tailoring, and that, your honor, is
why it should be seen as violative of theConstitution.
In favor of the politically expedient andpunitive approach of targeting for one
publisher and speaker, TikTok Inc, 1 speechforum, TikTok, and that forum's ultimate owner

(48:17):
by Dance Limited.
Through the acts 2 tiered structure, Congressconsciously skewed responsible industry wide re
regulation and betrayed its punitive anddiscriminatory purpose.
Congress provided every other company.
However, serious a threat to national securityat my pose, paths to avoiding a ban, excluding
only TikTok and bike dance limited.
Indeed, for any other company's application tobe banned, Congress mandated notice in a public

(48:40):
report describing the specific nationalsecurity concern accompanied by supporting
classified evidence.
For petitioners only, however, there is nostatement of reasons and no supporting evidence
without any discussion of the justificationsfor ban occurring only behind closed doors.
Congress must abide by the dictates of theconstitution even when it claims to be
protecting against national security risks.

(49:01):
Against those dangers as against others, theprinciple of the right to free speech is always
the same.
That is 100% true.
Right?
Congress cannot just waive its hands andviolate various provisions of the constitution,
even though with the strict scrutinyjurisprudence, there is at least some level of
an ability for for laws and congress to do thatif they can show compelling state interest and
national security is one of those.

(49:22):
So it's it's accurate for for TikTok to saythis.
It's also not the end of the story when youlook at a lawsuit like this one.
Now TikTok's gonna describe itself here, andone of the things it wants the court to know is
that it's very, very American.
Right?
And you can certainly understand why they wantthe court to know this.
In the United States, the TikTok platform isprovided by TikTok Inc, a California

(49:44):
incorporated company that has its principalplace of business in Culver City, California,
and offices of New York, San Jose, Chicago, andMiami among other locations.
Every office has an American flag flying yourhonor.
Like many platforms owned by companies thatoperate globally, the global TikTok platform is
supported not only by those employees, but alsoby employees of other bike dance subsidiaries
around the globe, including in Singapore, theUnited Kingdom, Brazil, Germany, South Africa,

(50:08):
Australia, and Yes, your honor.
China.
Many of the global TikTok platforms functionsare spread across different corporate entities
and countries, and the global TikTok businessis led by a leader 15 based in Singapore and
the United States.
Like other US companies, TikTok Inc is governedby US law.
We're proud to be an American where at least weknow we're free, says TikTok.

(50:30):
TikTok Inc's ultimate parent company isByteDance Limited at Cayman Islands
Incorporated Equity Hoeg Company.
Bike dance was founded in 2012 by Chineseentrepreneurs.
Over time, the company sought funding to fuelgrowth as is common in the technology sector,
which resulted in the issuance of additionalequity and dilution of existing shares.
Today, approximately 58% of ByteDance Limitedis owned by Global Institutional Investors.

(50:52):
Such as BlackRock, General Atlantic, andSusquehanna International Group, some of which
are names that we've seen in other contextshere in virtual legality, but are intended in
this case to indicate that we are just anothercompany like anyone else that has BlackRock as
its primary shareholder, and we follow whatthey tell us to do.
21% is owned by the company's founder ChineseNational who lives in Singapore, and 21% is

(51:13):
owned by employees, including approximately7000 Americans, and that 21% number is
important we see in the statute that one of thethings that divesture requires is not to have
20% ownership of someone that has ajurisdictional connection to a a nation that is
an adversary of the United States bike dancelaunched in May 2017 is very popular.
Tiktok is very popular.

(51:34):
Everybody loves tiktok.
Petition's ever address the US government'sasserted concerns regarding the TikTok platform
date back to 2019.
When on August 6th 2020, president Trumpabruptly issued an executive order purporting
to ban TikTok under the International EmergencyEconomic Powers Act or Ayipa, 2 separate
district court preliminarily joined the banorder, including, among other things that had

(51:55):
exceeded the president's AYepa authority.
Specifically, as these courts correctlyrecognized, The president's IEPA authority to
deal with any unusual and extraordinary threatto the nation does not include the authority to
regulate or prohibit directly or indirectly,any personal communication or the importation
of or exploitation of any information orinformational materials to prevent the statute
from running a file of the 1st Amendment.

(52:16):
Now, notably, that was an attempt by thepresident to use an executive order to ban or
otherwise control the operations of adisfavored company.
That is distinct from what's happening herewhere congress has passed, as David mentioned,
overwhelmingly, a law to ban or otherwisecurtail the operation of a disabled money.
So there is a stronger argument under theconstitution and the construction of the United

(52:41):
States government that congress can be allowedto do this over a president executive order
where president's executive execute laws anddon't otherwise create them.
But because TikTok had a certain amount ofsuccess getting that ban order overturned, I
think that's one of the reasons why we see thatfirst amendment argument premise so highly in
their lawsuit here.

(53:02):
So that's why we see them arguing so much overfirst amendment concerns where in this case,
TikTok isn't the primary speaker on theirplatform, even if they are a speaker on their
platform.
Right?
We talk about this a lot in virtual realitywhere TikTok can editorialize the algorithm is
doing a certain amount of speaking on behalf ofthe platform holder itself because it's picking
what you see in here.

(53:24):
But for the most part, it's user generatedcontent.
So one of the ways where I think thisparticular case could wind up looking stronger
in the long term is if TikTok winds up bringingin some of the users to this lawsuit and saying
their voices are particularly being curtailed.
Right?
And you see this reference a lot.
You'll see reference 170,000,000 Americanvoices being silenced and things like that.
But since they aren't parties to the lawsuit asit stands right now, I think their first

(53:47):
amendment argument is a little bit weaker thanit could And then you have a history here of
them dealing with various aspects of the USgovernment security apparatus between January
2021 August 2022.
Partitioners and CFIUS engaged in an intensivefact based process to develop a national
security agreement that would resolve the USgovernment's concerns about whether Chinese
authorities might be able access user US userdata or manipulate content on TikTok as well as

(54:12):
resolve the pending CFIUS dispute.
During that time, petitioners and governmentofficials communicated regularly often seven
times a several times a week, not seven times aweek.
That's a lot.
The result was an approximately 90 page draftnational security agreement with detailed
annexes in embodying a comprehensive solutionaddressing the government's national security
concerns.
I would not have wanted to be a part of thatnegotiation process.

(54:33):
That sounds like a bear.
Notably, the draft national security agreementprovided that all protected US user data as
defined in the agreement would be stored in thecloud environment of a US government approved
partner.
Oracle Corporation, which would allow reviewand vet the TikTok source code.
And again, if you wanna look at the real policyhere, you see the US favoring a US government
approved partner in Oracle over the partlyChinese owned TikTok, and you can have your own

(54:57):
thoughts about the economics and policydecisions made there.
That's all happening behind the scenes outsidethe purview of the Congress or the courts.
From petitioner's perspective, all indicationswere that they were nearing a final agreement.
After August 2022, however, CFIUS withoutexplanation stopped engaging with petitioners
in meaningful discussions about the nationalsecurity agreement.
In March 2023, without providing anyjustification for why the draft national

(55:18):
security agreement was inadequate, CFIUSinsisted that ByteDance would be required to
divest the US tiktok business.
So they were talking with the US government atsome point in 2022, 2023.
The US government says, you know what?
We're gonna be able to ban you separately.
And we're not gonna talk to you about thisanymore.
And that's when all of this kind of proceeds toroll downhill at the congressional level.

(55:42):
A divestiture that covers TikTok's USoperations from the rest of the globally
integrated TikTok business is not commercially,technologically, or legally feasible.
And we saw this discussed in the NPR article,But one of TikTok's primary arguments here is
that that qualified divestiture divestitureprovision that we looked at in the statute
isn't something that they can actually dowithin the 9 or 12 month period and they have a
number of reasons for that.
1st, a standalone US TikTok platform would notbe commercially viable.

(56:05):
A divestment of the US TikTok platform withoutany operational relation with the remainder of
the global platform would preclude theinteroperability necessary to make
international content seamlessly available inthe US market and vice versa.
As a result, the US tiktok platform wouldbecome an island where Americans would have an
experience detached from the rest of the globalplatform and it's over 1,000,000,000 users.
Such a limited pool of content in turn woulddramatically undermine the value and viability

(56:29):
of the US TikTok business, which is the realthe reality here as to why it's not viable.
Right?
They don't wanna sell for pennies on thedollar.
And if TikTok US is pennies on the dollar andalso a competitor to TikTok Global, they don't
wanna do it at all.
2nd, precipitously moving all TikTok sourcecode development from ByteDance to a new TikTok
owner would be impossible as a technologicalmatter.

(56:51):
The statute requires that all of the code berested from petitioner so that there is no
operational relationship between ByteDance andthe new US platform.
Specifically to comply with the law'sdivestiture requirement, the code base would
have to be moved to a large alternative team ofengineers, a team that does not exist, and
would have no understanding of the complex codenecessary to run the platform.
And that is true.
There's a statement in the statute that saysyou have you can have no operational connection

(57:14):
with ByteDance as part of the named parties inthat statute.
But to some extent, this argument doesn't holdwater for me because it's not TikTok's problem.
It isn't so far as the buyer would be willingto spend much less if it has to put together an
engineering team and figure out how to operatethis platform afterwards.
But Assuming that that's okay, that the priceagreed upon between the parties is acceptable,

(57:37):
the fact that they have to do that doesn'tactually impact bike dance or TikTok in and of
itself.
Right?
They the the buyer has the problem, not theseller.
Moreover, to keep platform functioning, theseengineers would need to access to bike data and
software tools, which the app prohibits.
Now that might be a longer term issue, butagain, I see this From a commercial
transactions perspective is lowering the priceof sale, not pro preventing it entirely, which

(58:00):
brings us back to former treasury secretaryMunchen and and trying to purchase TikTok with
or without the algorithm.
3rd, the Chinese government has made it clearthat it would not permit a divestment of the
recommendation engine that is a key to thesuccess of TikTok in the United States.
Like the United States, China regulates theexport of certain technologies originating
there.
Right?
This isn't China being particularly weird asChina.

(58:23):
It's just like the United States and preventingtechnology from moving across its borders that
doesn't want to.
So they prevent the removal of personalinteractive data algorithms, to non Chinese
companies, and that's gonna be a problem from alogistical and political perspective for TikTok
to actually consummate the sale.
The act bans TikTok and other bike danceapplications the act prohibits on Panham

(58:44):
Draconian penalties, all these various things,the online mobile application store and
internet hosting services from servicing for anad controlled applications.
This is a statute that we read earlier that wecan mostly skip this section.
But they do note here the various things thatwe noted above when we talked about the
statute, which is to say that it appliesspecifically to bike dance and TikTok.

(59:04):
It doesn't apply to companies that don't havepresidential funding and report to Congress.
And it also doesn't apply to any company thatincluding its broad based, social media
platform also has a travel reviews specificplatform.
So there's a lot of problems that they havewith all of this.
They don't have any findings Tiktok orByteDands are deserving of that particular call

(59:26):
out in the statute.
And so they find it to be unconstitutional, andthey ask the court to do the same.
And I think I've skipped most of this sectionbecause it's mostly things that we've talked
about before.
It's a violation of the first amendment.
Congress shall make no law bridging the freedomof speech.
Which as we've already spoken about is thewords in the constitution and arguably arguably
should be more scrutin more scrutinized than itactually is by American jurisprudence, but

(59:51):
through strict scrutiny, they still allow theUS government to infringe on the freedom of
speech if there is a compelling state interestand the response to that compelling state
interest is narrowly tailored to addressing thecompelling state interest.
So Congress is recognizing the importance ofprotecting First Amendment rights, even when
regulating in the interest of nationalsecurity.
For example, Congress repeatedly amended Ayipa,which again, is one of those areas where TikTok

(01:00:12):
has specific understanding because presidentTrump tried to ban them under it, which grants
the president brought authority to addressnational emergencies that pose unusual and
extraordinary threats to the country,Accordingly, under AIDA, the president does not
have the authority to even indirectly regulatepersonal communication limitations that are
necessary to prevent the statute from running afile the first amendment.
So they're trying to use essentially theirprior legal research to make their case here,

(01:00:35):
which is what you see in all parties.
Right?
I I have lots of clients where I talk to whereyou see their contracts or their vendor
relationships and you see various weirdprovisions in those contracts and you say, this
is a place where this party has gotten burnedin the past.
Right?
You learn from touching a hot stove, and thenyou write it into your contracts here.
They've been dealing with IEPA for 5 years, 5plus years at this point, and so they frame

(01:00:57):
their arguments on the basis of what they knowabout Ayipa.
The acts alternative to a band, a so calledqualified divestiture, is illusory to the point
of being no alternative at all.
We saw their arguments there, The act burdensTikTok's first amendment rights in addition to
the free speech rights of millions of peoplethroughout the United States in two ways.
First, TikTok has a first amendment interest inits editorial and publishing activities on

(01:01:18):
TikTok.
TikTok is more than a passive receptacle orconduit for news, comment, and advertising of
others, TikTok Inc.
Choice of material to recommend or forbidconstitutes the exercise of editorial control
and judgment that is protected by the 1stAmendment, and indeed is a place where they can
potentially be liable for very things that theywould otherwise highlight.
And that's where the intersection between thesekinds of cases and communications decency act

(01:01:39):
230, which you might see referenced a lot insocial media of all kinds.
Come into play.
So they say, look.
We're responsible for what we do on theplatform.
That is our speech through the operations ofour algorithm.
So we should be protected when we're looking toban on these grounds.
As the government itself has acknowledged, whensocial media platforms decide which third party
content to present and how to present it, theyengage in expressive activity protected by the

(01:02:01):
first amendment.
2nd, TikTok is among the speakers whoseexpression in the act prohibits.
TikTok Inc uses the TikTok platform to createand share its own content about issues and
current events, including, for example, itssupport for small businesses, Earth Day, and
literacy in education.
Look at all these nice things we do as TikTok.
When TikTok does so, it is engaging in corespeech protected by the first amendment.

(01:02:23):
The act precludes TikTok ing from expressingitself over that platform.
Even if the US tiktok platform could bedivested, which it cannot for the reasons
explained above, tiktok Inc.
Protected speech rights would still beburdened.
Because the act appears to conclusivelydetermine that any application operated by
TikTok, a term that Congress presumably meantto include TikTok Inc, is a foreign adversary

(01:02:44):
controlled application.
Section 2 g3a, the president appears to lackthe power to determine that tiktok incan owned
the application is no longer being controlledby foreign adversary, and has no operational
relationship with former formally affiliatedentities that are controlled by former foreign
adversary.
Right?
There's no ability to get out of ByteDance andTikTok being named in the statute.
The act, therefore, appears to conclusivelyeliminate TikTok's ability to speak through its

(01:03:07):
editorial and publishing activities and throughits own account on the TikTok platform, which
may or may not be true to its broad reading ofthe statutes since its supposed to only apply
to the platforms that are operated by thecompany, but it is a plausible reading of the
statute.
And so I think Takaka is just throwing what itcan.
At the wall with respect to the firstamendment.
For similar reasons, the act burden of thefirst amendment rights of other bike game

(01:03:28):
subsidiaries to reach their US user audiencessince those companies are likewise prohibited
from speaking and engaging in editorialactivities on other bike dine bike dance
applications.
The act restrictions on petitioner's firstamendment rights are subject to strict scrutiny
for 3 independent reasons.
First, the act represents a content andviewpoint based restriction on protected
speech, The act discriminates on a contentbasis because it exempt platforms whose primary

(01:03:50):
purpose is to host specific types of content,product reviews, business reviews, or travel
information, and reviews.
The Acthar distinguishes favorite speech,speech concerning travel information and
business reviews from disfavored speech, allother types speech, including particularly
valuable speech like religious and andpolitical content.
And here, I think TikTok is exactly right.
Right?
I think that I that this is a footfall again inthe statute itself.

(01:04:14):
It rings to me of the kind of thing that comesout of lobbying The term covered company does
not include an entity that operates a website,desktop application, mobile application, or
augmented, or immersive technology applicationas primary purpose.
Is to allow users to post product reviews,business reviews, or travel information, or
reviews that somebody asked for this exclusionbecause they were worried they were gonna get
grabbed by this statute, but where firstamendment law says that you can control time,

(01:04:38):
place, and manner.
You can't control content.
Right?
Like, that's the stuff that gets the mostscrutiny.
The most strict scrutiny by the courts is whenyou try to say you can say red is good, but you
can't say blue is good, or you can say blue isgood, but you can't say red is good.
That is the most obvious infringement of thefreedom of speech, and that's why the courts
disfavor it.
If you were just sticking this to say, Hoeg, ifyou're owned by China or North Korea or Russia,

(01:05:03):
that's a kind of regulation focused on nationalsecurity.
That's one thing.
When you add in it will never include somebodythat has an application that's mostly focused
on travel information or business reviews.
You're starting to favor specific content overother content.
And I think TikTok is right there.
And their right to call it out in thisparticular area in their lawsuit.

(01:05:24):
The act also on a viewpoint basis because itappears to have been inactive at least in part
because of concerns over the viewpointsexpressed in videos posted on TikTok by users
of the platform.
For example, the House Committee reportasserted without supporting evidence that
TikTok can be used by foreign adversaries topush misinformation, disinformation, and
propaganda on the American public.
A concern that in any event could be raisedabout any platform for user generated content.

(01:05:46):
Similarly, uh-uh, representative Raja KrishnaMarathi, sorry for the pronunciation there
representative, who co sponsored the act,expressed the unsubstantiated concern that the
platform continued to show dramatic referencesin content relative to other social media
platforms.
And this is a weaker argument.
Right?
What congress or individual congress people sayabout the statute is not as strong of an

(01:06:08):
argument as reading the words on the page ofthe statute and saying as applied or
foundationally This is why this statute is aviolation of the constitution.
You have to add in this extraneous informationhere, and the court might still be persuaded by
it.
There's nothing wrong with adding it, but it isa weaker argument than the words on the page.
2nd, the active stream limits between types ofspeakers.
As explained above, tiktok inc is a protectedfirst amendment speaker with respect to the

(01:06:31):
tiktok platform.
The act spatially discriminates between TikTokInc and other speakers depending on the primary
purpose of the platforms they operate.
Any application offered by petitioners isautomatically deemed a foreign adversary
controlled application without any exclusionsor exceptions.
By contrast, any other company's applicationcan be deemed a foreign adversary controlled
application Only if the company does notoperate a website or application whose primary

(01:06:53):
purpose is to allow users to post productreviews, business reviews or travel information
and reviews.
The act favors speakers that do offer suchwebsites or applications over speakers that do
not.
Move moreover, the act singles out TikTok, Inc,and other subsidiaries of ByteDance for unique
favor in other ways.
Whereas other companies with ownership in acountry deemed a foreign adversary becomes
subject to the ex restrictions, only upon thatpresidential determination the company poses

(01:07:15):
significant threat to the national security ofthe United States, ByteDance Limited and its
subsidiaries are automatically subject to theextra colonial restrictions by fiat or by being
named specifically in the statute.
The standard and process the act requires forevery other company likely falls far short or
falls likely falls short of what is required bythe first amendment and other applicable
constitutional protections.

(01:07:36):
Anyway, right, the other group of companiesprobably also have a complaint here but TikTok
Inc.
And ByteDance have been singled out fordramatically different even more clearly
unconstitutional regime.
With no public notice, no for presidentialdetermination that there is a national security
threat, no justification of that determinationby public report and submission of evidence to
Congress, and no judicial review for statutoryand constitutional sufficiency on the reasons

(01:07:59):
set forth in the presidential determinationthat doesn't exist.
The act also draws a speaker based distinctionin Subparza specifically named Spike Dance in
TikTok, and also exempt applications with fewerthan 1,000,000 monthly users.
Except if those applications are operated byByteDance or TikTok, A statutory restriction
targeting specific classes of speakers issubject to strict scrutiny, and that is
especially true when as here the act singlesout petitioners by name, for uniquely disabled

(01:08:22):
treatment and congressional statements indicatethat the act targets petitioners in part
because of concerns about the content onTikTok.
Because the act targets both speakers and theirmessages for disfavored treatment, strict
scrutiny review is required.
In fact, we get into the bill of attainder kindof concept.
Right?
3rd, the act is subject to strict scrutiny asan unlawful prior restraint.
The Supreme Court has consistently recognizedin a long line of cases.

(01:08:45):
This is accurate.
The government actions that deny use of a formin advance of actual expression or forbid the
use of public places for plaintiffs to say whatthey wanted to say are prior restraints.
Prior restraints on speech and publication arethe most serious and the least tolerable
infringement on first amendment rights.
The act suppresses speech in advance of itsactual expression by prohibiting all US TikTok

(01:09:06):
users, including petitioner TikTok Inc.
From communicating on the platform, and theyhave a number of various sites they have to
defend that position, the same history of otherByteDAN subsidiaries and their platform.
Then so it's subject to strict scrutiny theyargue.
It fails strict scrutiny because it does notfurther compelling interest.
Strict scrutiny requires the government toprove that the restriction furthers a

(01:09:26):
compelling interest and is narrowly tailored toachieve that interest.
If a less restrictive alternative would servethe government's purpose, the legislature must
use that alternative.
The act fails on both counts.
The act does not further a compelling interest.
To be sure national security is a compellinginterest, but the government show how that act
favored furthers that interest.
To do so, the government must do more thansimply posit the existence of the disease

(01:09:48):
sought to be cured.
Rather, it must demonstrate that the recitedharms are real, not merely conjecture, and that
the regulation will in fact alleviate theseharms in direct and material way.
And Congress is gonna get its chance if thislawsuit goes forward.
Congress itself has offered nothing to suggestthat the tiktok platform poses the types of
risks to data security or the spread of foreignpropaganda that conceivably justify the act.
The act as devoid of any legislative findings,much lesser demonstration of specific harms,

(01:10:11):
the TikTok supposedly poses in either respect.
And here's where Congress would ordinarily notshare classified information but have recitals,
or whereas statements that appear in laws.
You're probably familiar with these.
If you've read statutes at all, essentially,congress says, whereas company x or company y
is very, very bad and doing very, very badthing.
And whereas we have the authority bestowed uponus by this prospect and the constitution, And

(01:10:34):
whereas we wanna fix this, then we're gonnapass this specific law.
That doesn't appear in this act.
It's not a requirement of the act, but this iswhat they're arguing in court.
Congress has failed to do so far.
So Congress will see if this proceeds whetheror not they have anything to actually, claim
against TikTok and bike dance in the future.

(01:10:55):
The statements of congressional committees andindividual members of Congress during the hasty
closed door legislative process proceeding theacts enactment, confirm that there is at most
speculation, not evidence as the firstamendment requires.
Instead of setting out evidence, the TikTok isactually compromising Americans data security
by sharing it with the Chinese government orspreading pro Chinese propaganda.
The house committee report for an earlierversion of the act realized repeatedly on

(01:11:17):
speculation that TikTok could do those things.
Speculative re speculative risk of harm issimply not enough when First Amendment values
mistake.
These risks are even more speculative given theotherwise that the Chinese government could
advance those asserted interests using avariety of intelligence tools and commercial
methods.
Which is an interesting thing to put in yourlawsuit.
Right?

(01:11:37):
So speculative risk doesn't count, but alsoChina has way better ways than TikTok to go
mess with your elections or what have you,United So this is ridiculous.
The conjecture nature of these concerns arefurther underscored by president Biden's
decision to continue to maintain a TikTokaccount for his presidential campaign even
after signing the act in the law.
Congressional supporters of the act have alsomaintained campaign accounts on TikTok.

(01:11:58):
This continued use of TikTok by president Bidenand members of Congress undermines the claim
that the platform poses an actual threat toAmericans.
Further, even if the government could show thattiktok or another ByteDance application pushes
misinformation disinformation and propagandanon American public, the government would still
lack a compelling interest in preventingAmericans from hearing disfavored speech
generated by TikTok users and shared on theplatform just because the government considers

(01:12:20):
it to be foreign propaganda.
The act also offers no support for the ideathat other applications operate subsidiaries of
ByteDance post national security risks.
Indeed, the legislative record contains nomeaningful discussion of any ByteDance out
owned application other than TikTok, let aloneevidence proving that those other applications
pose such risks.
So they they still, even with ByteDance named,claiming that the statute is over inclusive

(01:12:41):
because ByteDance does other stuff.
The act also provides neither support norexplanation for subjecting petitioners'
statutory disqualification by legislative fiatwhile providing every other platform and users
of other platforms process that includes astat, statutory standard for disqualification
notice, a recent decision supported byevidence, and judicial review based on those
specified reasons.
Only petitioners are subjected to a regime thathas no notice and no reason decision supported

(01:13:04):
by evidence opening the door to, among otherthings, post talk arguments that may not have
been in basis for the government aid.
Action.
And this is all bill of attainder stuff.
The act also fails strict scrutiny because itis not narrowly tailored.
Even where questions of allegedly urgentnational security are concerned, The government
must show that the evil that would result fromtheir restricted speech is both great and
certain and cannot be mitigated by lessintrusive measures.

(01:13:28):
To satisfy narrow tailoring, the act mustrepresent the least restrictive means to
further the government's asserted data securityand propaganda interests and be neither over or
under inclusive the act fails in each of theserespects.
The act opts for a wholesale prohibition onpetitioners offering online applications in
lieu of a multitude of less restrictivemeasures it could have taken.
As discussed above, petitioners have beeninvolved in negotiations with CFIUS since 2019

(01:13:51):
over a package of measures that would resolvethe government's concerns about data security
and reported propaganda related to TikTok.
The terms of that negotiated package are farless restrictive than an outright ban.
The negotiations have resulted in the draftnational security agreement TikTok Inc is
already in the process of voluntarilyimplementing to the extent it can do so without
government action.
That initiative includes a multi $1,000,000,000effort to create a new US subsidiary, devoted

(01:14:15):
to protecting US user data and have US basedOracle Corporation store protected US TikTok
user data in the United States run the TikTokrecommendation system for US users and inspect
TikTok source code for securityvulnerabilities.
So it appears that the national securityagreement that they've been working on for the
past 5 years is a kind of quasi divestitureinto a separate US pillar, if you will, but

(01:14:36):
does not separate out the global platform inits entirety because that's the overall product
that TikTok is selling.
If executed by the government, the nationalsecurity agreement would also give CFIUS a
shutdown option to suspend TikTok in the UnitedStates in response to a specified of non
compliance.
The government has never meaningfully explainedwhy the national security agreement is
insufficient to address its stated concernsabout data security and propaganda.

(01:15:00):
Even if the government's dissatisfaction withthe draft national security agreement were
valid, despite the government never explainingwhy the agreement at the government itself
negotiated is unsatisfactory, the CFIUS processin which petitioners have participated in good
faith is geared towards finding any number ofother less restrictive alternatives to an
outright total ban.
It certainly seems like the act itself is notthe most narrowly tailored way of answering the

(01:15:20):
TikTok question even if they do present anational security concern.
Yet the government has not explained why theCFIUS process is not a viable alternative.
There are also a wide range of other Westrestrictive measures that Congress could have
been acted.
While many of these measures are themselvesunjustified as applied to petitioners, we did
nothing wrong, your honor, They neverthelessillustrate that the act does not select the
least restrictive means to further the nationalsecurity goals that appear to have motivated

(01:15:41):
it.
For example, Congress could have addressed somemembers to be concerned about allegedly
tracking locations of federal employees andcontractors by expanding the existing ban of
contract of government owned devices to coverpersonal devices of federal employees and
contractors.
Or congress could have enacted legislation toregulate TikTok's access to certain features on
users' devices measures of the Department ofHomeland Security identified in 2020 as

(01:16:03):
potential mitigations to reduce the nationalsecurity risks associated with TikTok.
Of course, Congress could also have decided notto single out a single speech platform and
company and instead pursued any number ofindustry wide regulations aimed at addressing
the industry wide issues of data security andcontent integrity.
Congress could have enacted a data protectionlaw governing transfers of Americans' sensitive
data to foreign countries, similar to thestrategy president Biden is currently pursuing

(01:16:25):
through executive order.
Indeed, Congress did not it did enact such adata transfer law.
The similarly named protecting Americans datafrom foreign adversaries act of 2024.
Which we actually see as part of the sameomnibus just below the tiktok ban, protecting
Americans data from foreign adversaries after2024, which is a more broadly applicable
provision about data security within the UnitedStates.

(01:16:47):
Right?
So TikTok, excuse me, TikTok says You couldhave done any number of these things.
A ban is way more than is necessary to controlfor the risk that is not true, your honor, but
that could possibly be applied to our operationof our platform.
There are also models of industry wideregulation, that Congress could have followed

(01:17:08):
from other jurisdictions.
For example, the European Union's digitalservices act requires certain platforms to make
disclosures about their content moderationpolicies and to provide regulators and
researchers with access to their data so thoseresearchers can access can assess if the
platforms are systematically promoting orsuppressing content with particular viewpoints.
Congress pursued none of these.
Congress did not even provide petitioners withthe process and fact finding protections that

(01:17:31):
the act extends to all other companies.
Right, getting back to we're not being treatedthe same as everyone else.
The act is over inclusive and under inclusive.
The act is under inclusive because it ignoresthe many ways in which other companies, both
foreign and domestic, can pose the same risksto data security and promotion misinformation
supposedly posed by petitioners.
The government cannot claim that banning sometypes of foreign owned applications is

(01:17:52):
necessary to prevent espionage and propaganda,while at the same time allowing other types of
platforms and applications that may create thesame problem.
Under inclusiveness raises serious doubts aboutwhether the government is in fact pursuing the
interested in folks, rather than disfaboring aparticular speaker or viewpoint, Most
glaringly, the act applies only to petitionersand certain other platforms that allow users to
generate and view text images, videos, realtime communications, or similar content.

(01:18:15):
The ax coverage is thus triggered not bywhether an application co collects user's data,
but whether it shows them content.
Accordingly, there's no necessary relationshipbetween the ax scope and con and Congress's
apparent concern with risks to Americans datasecurity, which could equally be posed by
personal finance, navigation, fitness, or manyother types of applications.
The act also singles out petitioners byexempting all other companies that operate any

(01:18:37):
website or application whose primary purposesto allow users to post product reviews,
business reviews, or travel informationreviews.
But the act does not explain one of suchapplications when foreign adversary controlled
under the act's broad definition and determinedby the president to be significant national
security threat could not likewise be used tocollect data from Americans, such as American's
location information, or this breadmisinformation.

(01:18:59):
Nor does the act explain why an entire companypresents no threat simply because it operates a
single website for the primary purpose to postproduct reviews, business reviews, or travel
information, and reviews.
The acts differential treatment of this favoredcategory of websites and applications also
disregards the fact that there's voluminouscontent on TikTok containing product reviews,
business reviews, and travel informationreviews.

(01:19:20):
Yet TikTok and all bike dance applications areineligible for this exclusion.
So That's basically their arguments here.
I don't think they actually add anything moreat minimum.
The act also fails intermediate scrutiny.
If you don't apply strict scrutiny, there'sanother level.
That's gonna be a harder case for TikTok tomake if they don't get this strict scrutiny
finding.

(01:19:40):
The act forecloses an entire medium ofexpression.
It's over broad constitutionally.
And then it's a bill of attainr as we talkedabout.
It's an unconstitutional bill of attainr.
You named bike dancing TikTok.
We talked about what a bill of attainr is.
We talked about why that might be I think thisis actually their stronger argument, but it's
so rarely used in American jurisprudence thatthey made it their second argument.
Because first amendment is a much more brightletter protected by the court's kind of

(01:20:04):
argument for them to make.
And they all say it's a violation of equalprotection for the same reason that would be a
violation of the bill of attainder.
It's the same kind of argument by treatingpeople differently.
Unconstitutional taking, you're stealing ourstuff, in violation of the bill of rights.
We request that you give us a declaratoryjudgment that the act is unconstitutional,
issue an order in joining the attorney generalfrom enforcing the act, in our judgment in

(01:20:26):
paper with us.
And, hey, if you wanna give us money, we'reokay with that too.
And that's the lawsuit.
Folks, what do you think of all this?
David, what do of all, where did David go?
David left.
So I've been in the midst of talking about thislawsuit, and and David has left us.
I apologize for missing his departure.
But that's me speaking, on this.
What are you doing in the comments about thislawsuit?

(01:20:50):
And we will get to those comments in just aminute.
I wanna make sure we grab everything thatanybody might have said here in the background.
I appreciate you walking through this lawsuitand this commentary with me.
Although Hernandez has a question, isn't oureconomy dependent on the same format for an

(01:21:12):
adversary to make all of our products?
You know, the the nature of economics acrossinternational lines is very complicated.
We've got tariffs going back and forth betweenthese various countries.
We've got things like this happening with bansand prohibitions on the various aspects of each
other's economies Whether or not that's a goodthing is gonna largely depend on your policy

(01:21:33):
preferences for free market trade and freemarket economics or protectionist policies to
protect labor and other things within variousjurisdictions.
So we might disfavor China a little bit toomuch.
We might not in really matter of policydecisions by our Congress, but I'm okay with
I'm okay with Congress being the ones to decidewhat the proper policy is rather than the

(01:21:56):
executive just making orders on these things,the question still remains, is it operating
within the powers that congress has?
Against the tide does tell us David had acrazed client call.
I'm sorry I missed him.
This is what happens when I bring the screensup, and I have to look through all my
documents.
I don't see the the video share.
So I apologize, David, that you had to go inthe middle of all that.
I was feeling bad that I did not prompt you insome of that, but when I got on a legal role, I

(01:22:20):
got on a legal role.
So I'm sorry about that.
If you wanna pop back in, you are more thanwelcome.
And he is gonna put that video up where weconverse about this particular topic in a
different way at some point in the next littlewhile.
So you're gonna wanna keep keep your eyes onhis channel for that.
As we go along.
Let's see here.
Hello darkness, my old friend.

(01:22:41):
So we voluntarily watch things that we areallowed.
Wonder what kind of personal is on Tinder andonly fans.
Where's the outrage over that?
Well, I mean, I think again, Congress has acertain concern about the Chinese ownership
interests in bike dance and TikTok.
And you can think that's justified or youcannot think that's justified, but that is
distinct from some of the other companies thatare operating within the United States borders.

(01:23:05):
Leo also says don't forget about Grinder.
Sure.
Yep.
Keep a family friendly folks, but, yeah, we canjust name, internet properties and
applications, certainly.
It starts as I'm at least glad that we can havea discussion about this.
I I think it's a worthwhile discussion.
Right?
I'm not somebody that uses TikTok, so I'm notsitting here.
Saying that I think TikTok has particularlystrong arguments because I want them to succeed

(01:23:28):
on this.
And I think as David pointed out when he washere, Congress did overwhelmingly approve this
act.
So even when we identify things that might bewrong constitutionally, the congress could go
forward after it is overturned.
If it is overturned, and write another law thataddresses the problems that the court would
identify in whatever decision that they made.
So I'm in favor of that being the process I'mpartly in favor of this discussion.

(01:23:51):
I do think Congress went too far in naming bikedance and naming TikTok and then providing a
content exemption for things like businessreviews which I would suspect was a function of
quick action lobbying more than Congressspecifically looking at that and saying these
are the things that need to be exempted.
It doesn't make a ton of sense to me from theoutside.
But that's how mistakes are made.
Right?
In Congress, even if they are, high levelthinkers, and elected by their fellow people,

(01:24:19):
are still human beings that can make mistakes.
Aldo asks, will the lawsuit go straight to theSupreme Court?
Nope.
It's being heard right now by the Court ofAppeals.
That's the Court of Exclusive jurisdiction.
For this particular answer, I think the DCCourt of Appeals, let me see if I can bring
that up in the background here.
Exclusive jurisdiction is The District ofColumbia Circuit United States Court of

(01:24:43):
Appeals, so they have to go through at leastone level of adjudication before they would hit
the Supreme Court by nature of the statuteitself.
But it is the kind of thing that the SupremeCourt could potentially take up.
It's certainly a major action attempted byCongress.
However, you spent it.
And so it's the kind of thing that the SupremeCourt might well have an interest in in
pursuing.
But as we know, the Supreme Court gets a lot ofcases proposed to it and only accepts a very

(01:25:07):
small amount.
Leo says in Congress, hi, IQ.
I just mean to say that they are educated folksin general that have some notions about these
things that maybe the average Twitter TikTok orother social media user doesn't, and yet they
still make mistakes.
Bad as a hog says, hey.

(01:25:28):
Did you know there's an Amish dating app calledAmish Match?
Did not bet as a hog.
Thank you for bringing that to my attention.
I'm not Amish.
So I can't use that, but I'm also married, so Ican't use that.
But thank you very much.
Leo says replace with AI, easy win, replacecongress with AI.
I mean, I think we're that that we're well onthe way to SkyNet when we replace our political

(01:25:49):
institutions with artificial intelligence.
Right?
To some extent intelligence in politicalinstitutions is artificial as it stands.
Right?
Okay.
I guess it's tied.
Not a question, but Missus Hokey's awesome isjust accurate.
So I wanted to bring that up again.

(01:26:09):
She is fantastic.
Okay, everybody.
If you have any more questions or comments onthis particular topic on TikTok, do you use
TikTok?
Do you like using TikTok?
Do you find it to be presenting you withmisinformation or disinformation at a greater
clip than other social media sites that youmight use.
Do you feel like there's any kind of Chineseinfluence that you can ascertain using TikTok.

(01:26:34):
I'd be interested in all of those things.
I don't use it myself.
I don't know.
So let me know.
Know a lot of people do use TikTok.
I know a number of my law friends use TikTok,and I had invited some of them to this episode,
but I know that they covering the care and readtrial right now.
So if you are interested in that trial, you cango see Emily.
You can go see Alita.

(01:26:54):
You might be able to see other folksbroadcasting that trial when this one when this
episode concludes, but I'm very thankful foreverybody being in the space today, talking
about TikTok, talking about social media, andwhether or not Congress is acting within the
authority given to it by we, the people.
So if you have any other questions or comments,Let me know.
Otherwise, I'm gonna be wrapping up this videotoo sweet.

(01:27:17):
Thank you everyone for being here.
Hello, darkness.
My old friends says TikTok takes up too manygigs to run.
Maybe that's because they're running secret spybots.
No?
No.
Okay.
Alright.
Papa Rick back on topic.
I watched TikTok on YouTube and Twitter.
I refuse to have a TikTok account.

(01:27:38):
I do get a lot of TikTok videos floated to meon Twitter, right, when people pull them from
that platform and bring them over.
I don't use Twitter as much as I used to.
I find it a little bit less helpful than itonce was.
But, yeah, I I I hear you on my exposure toTikTok is basically limited to those kind of
platforms.

(01:27:59):
Yoshisu says China themselves banned TikTok.
China bans a lot of stuff.
I'm not sure that that is the rule that weshould use in ostensibly a free society to
decide these questions, China blocks it.
It's good enough for us to block would be a badroad to go down, I think.
This is Hoeglasses.

(01:28:19):
I will not use my TikTok.
My clients in market are not there, and I'motherwise trying to separate from my tech
social platforms.
Is just a good idea.
I think most of these social platforms caneasily become a hell spay a hell space that
contributes to depression or anxiety or whathave you but they've still been useful in my
profession and marketing in various other ways.
So I approve Missus Hoeg.

(01:28:40):
I will still use Twitter from time to time.
Todd, it really feels like the US government istargeting TikTok, but I wish US would stick to
one point.
Do they not like it because national securityor because of psychological issues for the
youth?
They have picked national security for thisreason.
The courts like that as a compelling stateinterest.
In general, national security is 1 courts arewilling to defer poll policy makers decisions

(01:29:03):
on.
So Congress frames it as a national securityissue.
TikTok frames it as a first amendment issue.
Those are some of the strongest things that acourt will protect.
And then the real fight is, is it a bill ofattainr?
Are you targeting these various companies forreasons that are outside your ability under the
constitution?
And that'll be the kind of under the headline,reality of the legal dispute between these

(01:29:25):
parties.
Papa says, thank you for the stream.
Thank you for being here, Papa Rick.
I really appreciate it.
And thank you everyone else for being here aswell.
And as we said at the top of this video, bestwishes to Shareen's family.
You are a noted member of the community.
We loved having you here, and we're very sorryto see you go.

(01:29:48):
So thank you everyone.
For being here in virtual legality, and I willcatch you on the next episode of whatever we do
here on the YouTube channel.
Virtual legality is YouTube video series withaudio podcast versions presented as commentary
and for education and entertainment purposesonly.
It does not constitute legal and does notcreate an attorney client relationship.

(01:30:11):
If you have legal questions about the topicsdiscussed, please consult your own legal
counsel.