Lawfare Live: Analyzing Trump's TikTok Deal Executive Order

Background of the TikTok Law

• 📜 Congress passed a law, colloquially known as the "TikTok Law," aimed at prohibiting U.S. companies from doing business with TikTok.
• 🚫 The law's enforcement mechanism involves substantial fines, potentially up to $5,000 per user, creating nearly a trillion dollars in liability for non-compliance.
• 🏛️ President Trump issued an executive order delaying the law's enforcement, which was viewed as a defiance of congressional action rather than a legitimate extension.

Legal Conditions for TikTok Operation

• ⚖️ The law requires a "qualified divestiture" by ByteDance, TikTok's Chinese owner, meaning foreign entities can own no more than 20% of the company.
• 🚫 A critical condition is the absence of an "operational relationship" between the new TikTok and ByteDance, specifically concerning the content recommendation algorithm.
• 📝 A procedural step requires the President to certify to Congress that a qualified divestiture is in process, though the law is ambiguous on the President's discretion in this certification.

Analysis of the Executive Order

• 🧐 The executive order largely states that the divestiture meets the required standards, deeming it compliant with the law's ownership thresholds.
• ❓ Details regarding the algorithm's operational control and licensing agreements remain vague, leaving uncertainty about true separation from ByteDance.
• 🇨🇳 The reasons behind China's agreement to the deal are unclear, potentially involving concessions in the broader U.S.-China trade war or other geopolitical considerations.

Concerns and Future Implications

• 🤝 The selection of investors, including friends of President Trump like Larry Ellison, raises suspicions of self-dealing and potential corruption.
• 📉 The lack of transparency in the deal-making process and the potential for undisclosed concessions to China are significant concerns.
• ❓ The long-term implications for national security and the rule of law remain uncertain, especially given the President's past actions and the ambiguity of the current order.

Lawfare's Stance on TikTok

• 🚫 Initially, Lawfare staff avoided TikTok due to national security concerns related to Chinese control.
• 🤔 The question arises whether TikTok is now acceptable given its potential ownership by American oligarchs, similar to other U.S.-based platforms.
• ⏳ It is advised to wait for further details and finalization of the deal, potentially until December, before considering joining the platform, as concerns about proper mitigation are still present.