In just a few years, TikTok has built up a lively community of more than 100 million US users. As a foreign owned business, Bytedance may not have many rights in the US, but those US users, most of whom are citizens, do. In the Internet age, the freedom of speech and freedom of the press, enshrined in the constitution, must necessarily be expanded to freedom to access a wide variety of Internet methods and resources. These rights must not be tampered with lightly, yet President Trump has given TikTok 45 days to either be sold to an approved US company, or cease to function in the US. The fact that Trump seems to weight each solution equally, and nothing he has so far said in his war against TikTok, indicates that he has given even the slightest thought to the “civilian causalities” of this war, the TikTok users, and any rights they may have. Many have spent years building collections and followers on the platform that Trump proposes to do away with for reasons that have nothing to do with them.
Unless, of course, they do.
Many suspect that Trump's real problem isn't with TikTok at all, its with TikTok users. Whether it's high profile creators like Sarah Cooper that have gone after Trump on TikTok, or K-Pop fans using TikTok to prank the Trump campaign and other white supremacists, TikTok users have emerged as a significant anti-Trump force, and this is an election year. If you read my first post on TikTok, you already know I think Trump is all about silencing the TikTok users. If that is the actual goal, rather than an unfortunate side effect, then it's definitely a violation of the First Amendment.
2.) It violates US campaign laws.
I'll leave it to the lawyers to work the details, but if this move really is about using the power and authority of the federal government to silence anti-Trump voices ahead of an election, then either it's a violation of campaign law, or we need a new law. At a minimum, it would seem to run afoul of the General Prohibition Against Using Official Resources for Campaign or Political Purposes.
3.) It represents the brazen thief of Chinese technology by the United States.
TikTok has achieved what every web startup hopes to achieve. It has created a unique web product and at the same time created a new web niche, which it dominates. As President Trump said at his White House Press Briefing on 4 August, “TikTok is very successful; it does tremendous business in the United States.” Its short-form video creation and distribution model has won it more than 500 million users in over 150 markets, and 39 languages, in less than four years. “People are riveted by it,” Trump says. Now he is forcing the Chinese owners of that technology to sell it to a US company. This sounds a lot like the thief of intellectual property, or forced transfer of technology, that the US often accuses China and other countries of practicing. According to Lee Branstetter, Carnegie Mellon University and Peterson Institute for International Economics:
Forced technology transfer occurs when foreign multinational companies have to provide strategically significant technology to an indigenous entity they do not control in order to gain access to the massive Chinese market.So, how is not forcing Bytedance to sell the TikTok app (and backend) to Microsoft, not the same sort of forced technology transfer the US has been complaining about? As good as it may feel for Trump and his friends to force the Chinese to hand over this very popular app to Americans in the short run, it doesn't change the fact that as the hands-down biggest owner of technology and intellectual property, behavior that would appear to justify or encourage the thief of technology or intellectual property, is likely to hurt US interests more than help them. Just saying.
4.) It is a US takeover of a foreign asset as practiced by authoritarian regimes.
Before Trump proposed the US takeover of TikTok, only authoritarian regimes like Russia, China, and Iran were known for forcing tech companies into selling out to investors with close ties to the government. For example, Uber had to sell their Russian and Chinese branches to local players. These authoritarian regimes are already reducing the usefulness of the Internet as a truly global network. The US takeover of TikTok is setting a dangerous precedent. It will be used by other authoritarians around the world to further decimate the Internet as the worldwide resource it was intended to be. This is already starting to seriously limited the usefulness of the Internet as a tool to access information, and advance international dialogue, in an age in which that is becoming increasingly necessary. On the business side, as the home and originator of the vast majority of Internet resources, and reaper of the biggest part of the profits, US companies have the most to lose from this balkanization of the Internet.
5.) Trump is demanding a “cut,” to be paid for allowing a private transaction.
Trump is making the unprecedented demand that the US Treasury has to get a “very big proportion” of the sales price in any Microsoft-TikTok deal, saying since “We're really making it possible because we're letting you operate here so the United States Treasury would have to benefit also, not just the not just the sellers.” Trump has declined to say what laws would make this legal. The New York Times surmised:
In essence, the president is promising to orchestrate the kind of pay-to-play bounty that the United States prohibits companies from making to governments of other countries under the Foreign Corrupt Practices Act.Again, this is a common practice among authoritarian rulers. There is no US law that would allow the Treasury to demand “a piece of the action” to consummate a merger or an acquisition.
He maybe taking this illegal stance to discourage Microsoft from making the deal because the would prefer it go to a company that has “friended” him, like Facebook, where he can exercise a level of content control, or be banned altogether, which brings us to six.
6.) Trump has implied that the US government would be asserting some control over the user content of an Americanized TikTok.
In a White House Press Briefing on 4 August 2020, Kayleigh McEnany was asked a question by the corespondent from the right-wing OAN, now Trump's favorite news outlet because it's to the right of Fox News. After leading with accusations that the platform encourages the “sexual exploitation of young people,” she asked would the White House be taking steps to control the content of a post-transferred TikTok. The Press Secretary answered in the affirmative. Any government censorship of user content on the platform that goes beyond existing laws would also be a violation of the First Amendment, but entirely consistent with his authoritarian desires to mute the anti-Trump activism on the platform.
7.) There is an implied bias against US companies that don't work with the Department of Defense.
In suggesting Microsoft as a possible buyer, Trump said “They're approved in that respect at many levels including working with the Department of Defense.” This was a clear message to Google, and Apple, that they may not be in the running to takeover TikTok because they have refused some touchy government, and DoD contracts, often responding to employee pressure to decline business likely to make authoritarian rule, or military conquest, easier. They remember when IBM collaborated with the Nazis to catalog Jews, and are determined not to see a repeat on their watch.
Beyond Bytedance, and the TikTok user community, this TikTok story may feel like back-page stuff, but once you examine what is really going on here, you find a major Trump power grab that should concern everyone interested in maintaining even the current levels of freedom and democracy in the United States.
Clay Claiborne
Related: What's behind Trump's war against TikTok?
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