The Opinions - David French on the Case for Banning TikTok

Episode Date: January 13, 2025

The Supreme Court seems ready to uphold the law that would ban TikTok unless the app’s Chinese parent company, ByteDance, sells it to a U.S. buyer. The Opinion columnist David French talks with the politics editor Katherine Miller about why he believes the app poses a unique threat to U.S. security.Thoughts? Email us at [e-mail]. Hosted by Simplecast, an AdsWizz company. See pcm.adswizz.com for information about our collection and use of personal data for advertising.

This is The Opinions, a show that brings you a mix of voices from New York Times Opinion. You've heard the news. Here's what to make of it. Hi, I'm Catherine Miller, a writer and editor in the New York Times opinion section where I focus on politics. I'm David French. I'm a columnist in New York Times opinion where I focus on law, politics, and culture. The U.S. Supreme Court is weighing whether the federal government can ban TikTok if its Chinese owner, bite dance, refuses to sell. The U.S. is arguing that TikTok poses a serious threat to national security and must ultimately find a new owner or be shut down. TikTok officials say the law violates free speech rights. David, I really wanted to talk to you about your very strong opinion about TikTok.

You've written that you think the app should be banned in the United States because of national security concerns. As a legal expert and somebody who spent your career fighting for free speech, I'd really love to walk through how you think about this issue. Well, thanks so much, Catherine. This is, interestingly enough, one of the more immediately consequential cases that the Supreme Court will hear this term, or arguably over the next couple of years, because if the Supreme Court upholds the ban of TikTok, which requires TikTok to shut down unless it divests itself if its Chinese control, that's about 170 million Americans who will be immediately affected, who use the TikTok. app regularly. That's an awful lot of people. But the reason why, even though I am a lifelong free speech

advocate, I support the ban on TikTok, this particular law, is because the issue here really isn't about the content of the speech on TikTok. Everything that's on TikTok, you could put on Instagram, and it would be fine. Facebook, it would be fine. Maybe not fine from the standpoint of it being worthwhile content. There's a lot of track. on TikTok, but constitutionally fine. The issue here is control. Can we allow a social media company that the government believes to be under the direct control of the People's Republic of China to have that kind of access to American data and to the

American public square? And that's the real issue in my view. Who controls TikTok is of enormous consequence? And the Chinese government does not have a constitutional right to operate in the American public square. And in fact, there's a lot of potential dangers and problems if we allow China to have that continued access. Well, let's talk about those national security issues kind of one by one. With personal information, TikTok claims that U.S. data is cordoned off. Do we have evidence that Chinese authorities have access to U.S. data or are using it?

in a way that they shouldn't. Right. I think you've raised a really important point here. Yes, TikTok does claim that it has walled off its U.S. data. It has multiple subsidiaries. This is a complex corporate form here that we're dealing with, with American subsidiaries, Cayman Island companies, with Bight Dance, which owns TikTok, headquartered in Beijing.

And so there is a lot of dispute between TikTok and the U.S. government over this issue of control and access. And TikTok is trying to argue to the American public that in fact they wall off American data, that all of that is contained, that there are controls and systems in place to prevent the kind of access to the U.S. government is worried about. And the government's counter is essentially, wait, no, you're misunderstanding the way the Chinese government views its corporations. if you think that a corporate separation between the Chinese government and TikTok is really meaningful. Because in fact, the government would point out that there is a Chinese Communist Party committee within bite dance, that there is a long history of direct Chinese control over Chinese corporations.

And so it's just apples and oranges to compare the way the American government interacts with corporations with the way Chinese government interacts with corporations. That's the government's position. But it's important to note that TikTok disputes this, that TikTok disagrees. We'll talk a little bit more about how U.S. law treats these different things, but just to, like, drill down specifically into the national security concerns. I know you have a very specific concern about kind of the algorithm or the way that TikTok could be used. What's your, like, worst case scenario? Right.

My worst case scenario, I unspooled over a dispute over Taiwan where there's evidence of a China. military buildup that looks dangerous to the Pentagon. And I wrote a scenario imagining this a couple of years in the future that it says, let's say it's September 26 and you're seeing evidence of a buildup. And the Pentagon cancels shore leave. It starts to put Marines on high alert in the Pacific. And so what does all that have to do with TikTok? Well, if it's a Chinese, ultimately Chinese controlled platform with Chinese control over the algorithm. And the algorithm is the mechanism. that either boosts or suppresses certain kinds of content, you could see that immediately the Chinese government

could start to flood into the hands of 170 million Americans its own messaging. It could promote messaging, conspiracy theory messaging that says that the orders to report to ships were fake orders. It could promote Chinese government messaging over the status of Taiwan, say, comparing it to Hawaii.

All of these things that if you have immediate Chinese control, of communication to 170 million Americans. It doesn't take, you know, a genius, just figure out that that kind of control could be abused in some rather scary ways. And then you add on to that concern the problem of the access to personal data, and you could immediately see

where Chinese operatives would be able to perhaps blackmail influential Americans based on information in their direct messages say on TikTok or information related to their activity online. And this would be something that, you know, Americans who grew up in the Cold War, just imagine if during the height of the Cold War, the Soviet Union had direct access to communicate with more than 100 million Americans. We would have found that unacceptable during the Cold War.

It's unacceptable now. And I think when this was going through Congress, one of the things that lawmakers were a little unsettled by, was TikTok actually sending notifications asking people to call their lawmakers during the negotiations of the bill? Right, right. Kind of to do this in. And obviously, that's a very different thing than Taiwan. But like—

It actually backfired on TikTok because it demonstrated the exact problem in real time. Look, TikTok can sort of flip a switch and turn into an engine of political activism. Well, that's one thing if it's political activism with Congress over a matter affecting TikTok directly. It's another thing entirely if it's political. activism regarding the interests of the Chinese Communist Party. Right. And so this kind of gets into another thing. There's actually a history that I didn't know that much about before this came into play last year about how U.S. law treats foreign ownership of media companies and then also just the differences between Americans' constitutional

rights and then those of abroad. How does U.S. law treat these things differently? It's a really good question. And in fact, when I talk about TikTok, I get that question a lot. I mean, is Mark Zuckerberg a better person to control the algorithm and say bite dance? And the answer to that question really is kind of binary in the sense that, well, Mark Zuckerberg as an American citizen, and META as an American company, possesses First Amendment rights. The People's Republic of China does not. And so while we may dislike the choices that META makes with its algorithm or say that X makes with, its algorithm. We may dislike those choices, but those choices are protected by the Constitution.

And these American people and these American entities, they have American constitutional rights. And so, you know, in theory, Zuckerberg could become very pro-China, and he could promote Chinese content on meta. And even though that could be dangerous, it could be misinformation, it could be propaganda, there would be constitutional protections. One thing I've been thinking about also is that there are other companies that are Chinese owned or have Chinese interests involved in them. Thinking about things like Smithfield Foods, do you have the same kind of national security concerns about other industries or is TikTok unique as a media company? Well, I'm concerned about both. But in the short term, I'm more concerned about TikTok because of that immediate ability that bite dance has through TikTok to have.

affect American debate to access information about Americans. But we also have a much larger, bigger problem that is really related to choices, strategic and economic choices we made a couple of generations ago, quite frankly, where the theory was that if we can economically integrate China into the global economy, if America and China can be more closely economically linked, and if we can economically liberalize China, that we will also pull politically liberalize it. And, you know, this was not a belief that people just held blindly. They looked at the Soviet Union. They looked at how the opening of the economy and the opening of the marketplace of ideas in the Soviet Union may have contributed ultimately to the Soviet Union's

collapse. But it turned out that that theory, at least so far, has not panned out. And so what's happened is we are now very linked economically with China in a way that we were never linked economically with the Soviet Union in a million different ways that are going to be very hard to unravel. But we should, especially when it comes to things like food supply, vital national resources, technology, we need to be disentangling from China because China has demonstrated that it will take all of the benefits of trade with America while maintaining all of its totalitarian control over its citizens and all of its geostrategic ambitions abroad. I mean, one of the other kind of open questions right now in terms of the next couple months is,

so the Supreme Court is hearing this case. We'll see how they approach it. Donald Trump has filed a amicus brief, and he's nominated Marco Rubio to be Secretary of State. He's chosen Mike Walts to be his national security advisor. These are considered hawkish conservatives on China from a national security perspective. Donald Trump wants to keep TikTok open for business or maybe he wants to negotiate a deal. Like, let's say the little bit. law goes into effect. Do you think Trump will be trying to repeal the law? Catherine, the MAGA Trump politics of this are weird. It's a journey. It is a journey. So if you go back, the Trump administration was leading the charge on banning TikTok. And in fact, Trump tried to take measures to ban TikTok in the last year of his term. He tried it. And for a long time, sort of within the MAGA world, this was one of your few overlaps between traditional Reagan conservatives like, say me, and MAGA populace. We have very little overlap on policy, but both MAGA and traditional Republicans are hawkish on China. And Trump had been

previously more hawkish on China. And so this was one of those rare sort of elements of bipartisan agreement between the MAGA populace, the traditional conservatives, national security-minded liberals and Democrats, and this is one of the reasons why he had broad bipartisan support when it was passed. And then Trump changes his mind. And he doesn't just change his mind a little. He changes it a lot. And vows to ask people to vote for him to save TikTok. And the question is, why? Why did he do it? And nobody has the definitive answer. But what we do know is that one of TikTok's major investors became a Trump supporter. We know that Trump and MAGA

have a very vibrant presence on TikTok. Trump has almost 15 million followers on TikTok. And so there's a question as to whether Trump now sees this in his self-interest. Now, it's not so weird for Trump to change his mind. What's weird is Trump filed a brief in the Supreme Court that reads as if it was filed in North Korea.

And why do I say that? I'm going to actually quote to you some parts of this brief. President Trump alone possesses the consummate deal-making expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the government. As I wrote, that's not a legal argument. That's a love letter to dear leader Trump. and it's basically asking the Supreme Court to set aside and delay the implementation of a law passed by Congress signed by the current president in the United States because the incoming president is just such a great dealmaker. He'll get this done even bigger and better. But that's not how all this works, Catherine. I mean, this is just weird, weird stuff.

Thinking a little bit about how this intersects with how people feel about the government, let's say it's, is the band does go through. They don't divest, you know. The average TikTok user, like, what would they be thinking about? And specifically, I mean, do you think people would appreciate the national security concerns about why this is taking place? I think the question I'm kind of circling around is, do you think people will understand why this is happening?

Oh, I'm so glad you asked that question. And I've got an easy and immediate answer. No, people will not understand what is happening. It is amazing to me the importance of this case as far as it's direct and immediate relevance. And for a lot of older listeners, and I'm going to put myself in that camp, I'm a grandfather, so I qualify. TikTok is no loss. But for millions of other Americans, this might be their primary source of news and entertainment. I mean, we're talking about an app that is extremely addictive.

If the Supreme Court upholds this ban and TikTok is not sold, there are going to be millions of Americans who pick up their phone and press the TikTok app and are going to be puzzled, stumped, confused, angry when it doesn't work. And there's been a leadership vacuum on this issue. Biden's not out there talking about it. Trump is opposed to it. Because of Trump's opposition, a lot of some of the stalwart Republicans who had supported this have gone silent.

So I honestly, I don't know what's going to happen after this thing goes off if there's going to be such an outcry, you know, that there's an immediate repeal of the law. I don't know. We're going to be a bit in uncharted waters. But I'm so glad you brought that up because get ready for an awful lot of people. Parents, get ready maybe for your kid to walk in and say, what happened to my app? And then just kind of lastly, can I ask for your prediction? Do you think TikTok will be available to download the United States in six months? In six months, is TikTok available to download in the United States?

I'm going to very tentatively say yes because of a sale, not because the law was repealed, but because there is too much money to be made selling this thing with 170 million American eyeballs, pairs of eyeballs, ready to be, you know, watch it. It's hard for me to think that this thing's going to go completely silent, even if the ban is upheld. This is not something that we've seen it's like in the modern era. So I don't know what will happen. David, thank you so much for taking the time. Well, thanks so much for chatting with me, Catherine. If you like this show, follow it on Spotify, Apple, or wherever you get your podcasts.

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