TikTok and the Law: A Primer (In Case You Need to Explain to Your Teenager)

As an employee working for a different company that operates under a CFIUS National Security Agreement (NSA), I believe it's possible for TikTok to be run under an NSA that keeps data more-or-less protected in the US. Obviously, anything can be compromised, and I believe the US government is well aware of that, and while it states that as a major concern, I don't believe the privacy of teenagers is a greater priority to the US government vs. the ability to spy on them.

Typically an NSA this would involve the data being hosted in the US with hosting, auditing, support, etc. being provided by contracted US-based businesses. CFIUS can audit any aspect of this at any time, which is key in the context of TikTok here, because it opens the door for TikTok to be used as a US government survellience tool in a similar way as it's claimed to be one for Beijing.

A few observations:

1. "So what happens if CFIUS concludes that ByteDance should not have been allowed to acquire the business now known as TikTok? That situation has arisen many times over the past few years, and the answer normally is that the acquiring entity must divest itself of the acquired entity—or else cease operations in the United States. "

The article conflates Tiktok and Musical.ly. The two are actually not the same.

2. "First, if the president sanctions the company in the manner outlined above, TikTok could no longer maintain its servers or any other operations or property inside the United States; it will have to operate entirely from foreign locations beyond the reach of IEEPA leverage, which is to say: from China. "

Tiktok could base their servers in a third country, say Canada.

3. "TikTok depends on user-generated content, and the U.S. customer base depends largely (though not entirely) on the popularity of users who might no longer feel free to post to TikTok. That certainly will be true for high-profile US-based TikTok “creators” and celebrities with massive TikTok followings. And when Charli D’Amelio and others drop out in favor of whatever might turn out to be the next big platform, they’ll take their audience with them. "

It is not clear that Charli D'Amelio would start using Instagram Reels.

4.

I would be interested if Professor Chesney could provide an analysis on whether banning Tiktok would violate the First Amendment of the constitution. Especially considering any such ban would mean the deletion of political speech.

The constitution would, of course supersede any federal law, since it is the Supreme Law of the Land.

This is going to be a moment that raises a lot of young peoples awareness of legal frameworks and Foreign Investment and things. There will be ripples from this for a long time to come.