Los Angeles Fires Continue to Rage; Is Time Running Out for TikTok?
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From KQED. From KQED in San Francisco, I'm Alexis Madrigal. As you've no doubt heard, fires have devastated parts of Los Angeles, especially Pacific Palisades and Altadena. We'll talk with the Chronicle staff meteorologist about the weather and climactic conditions that led to the firestorms.

And then we'll look at the legal argument for and against TikTok, which is hoping the Supreme Court will stave off the impending ban on the social media app, which is created by the Chinese headquartered company ByteDance. That's all coming up next after this news. Welcome to Forum. I'm Alexis Madrigal.

Three days ago, before the fires broke out in Los Angeles, San Francisco Chronicle meteorologist Anthony Edwards wrote on Blue Sky, I was sweating bullets at work today while forecasting. This is the most concerning weather event I forecasted in my young career. I took note and started paying very close attention to the forecast coming from Edwards, the National Weather Service, and dependable observers like Daniel Swain, and I'm sure many of you did too.

It's fair to say, however, that this may be the worst case scenario realized. Thousands of structures have been lost, and it looks very likely to be the most costly fire event in California history, maybe even in the nation's history. And sadly, as we'll hear from Edwards, the problems are not over for Los Angeles. Welcome to Forum, Anthony. Hey, good morning. Thanks for having me.

Can you give us an update on the big fires and what's happening? Conditions change overnight. Yeah. So we had a reporter just attend the press conference from L.A. Fire Department, and they've confirmed that now both the Palisades Fire near Malibu and the Eaton Fire north of Malibu

Pasadena have each burned more than 1,000 structures, which makes them both the most destructive fires in Los Angeles County history, despite only really being burning for 36 or less than 48 hours. So pretty striking right there. I mean, have evacuations lifted for some parts of the city? Are people able to get back in? Have you heard any of those things?

Yeah, so they did lift evacuations for the fire near Hollywood Hills. I'm sorry, there's so many fires at this point, I'm forgetting the name. I think it was the Sunset Fire. Sunset, I think they called it, yeah.

Yeah. So that has been listed, thankfully. But, you know, the extreme fire risk continues. So anybody really, especially in the foothills, should remain vigilant for the next several days, perhaps longer with more dry winds expected to continue. Yeah.

Tell us more about that weather outlook, the Santa Ana winds, which are, you know, traditionally have been strong and dry. Um, are we seeing, you know, a decline in those or, or are they just kind of going to keep coming for the foreseeable future? Sure. So, you know, we're coming off of the, one of the strongest Santa Ana wind events in 14 years. Right. So, um,

When we say they're weakening, this is a relative scale, right? Winds are still going to remain very strong in some areas for days. We're actually expecting another kind of spike in winds tonight. The Weather Service has issued a high wind watch from 6 p.m. Thursday to 2 p.m. Friday for Los Angeles and Ventura County mountain regions, and that includes portions of the Palisades and Eaton Fires regionally.

gusts could reach 65 miles per hour. And so the weather service wrote that there is a high likelihood for additional damaging wind gusts across the mountains into the foothill areas again tonight and into Friday. So while I don't expect winds to be quite as extreme as they were, you know, two nights ago, it

especially in like maybe Pasadena, these winds will still be really strong and capable of, you know, sending embers quite a ways downwind. So this remains a really dangerous situation. Yeah. I mean, going back a few days, what were you seeing in the forecast and how the sort of weather systems were setting up that made you say like, this is the, you know, the most frightening forecast that I've ever had to make? So, yeah,

This was a high confidence forecast several days in advance, really. As meteorologists, we like to look at the potential for Santa and wind events, particularly in the fall and winter when a sort of storm is kind of a dry storm because it goes around California. It will go up toward Washington and Oregon and then dip toward Nevada. But if that's

if that low pressure system goes even farther south you know digs toward baja california then we really see a signal of quite strong winds all the way up from you know the ground where people live up to the altitude where airplanes fly above 30 000 feet and when those winds are all coming the same direction the momentum uh it slams into the mountain ranges which are running you know west to east uh

and then there's nowhere to go but up and over, and then they accelerate on the downwind side toward areas like Pasadena,

Malibu, et cetera. And so we even saw an 84 mile per hour wind gust at Burbank airport. And they were having flight issues there. And there were even wind gust reports up to 100 miles per hour in the San Gabriel mountains. So this was just really, you know, like you said, worst case scenario. It was predicted, but you know, there's not much you can do to, to stop damaging, damaging effects from winds that strong. Yeah. Yeah.

It also is really important because it changes the speed of the fire spread, right? I mean, we experienced this in northern California with some of the fires in Sonoma County and north. How fast, like how does, what is the relationship, I guess, between wind speed and fire spread? I mean, it seems obvious that it, you know, they're linked, but is there a wind speed at which, you know, things really take off?

Yeah, so there's common rules for wildfire spread speed, which is you take 10% of the sustained wind speed. So say, you know, you have a 20-mile-per-hour sustained wind. The fire might spread two miles per hour. However, that rule of thumb really breaks down as winds get stronger and stronger. So in some of these instances, we were seeing...

you know sustained winds 30 to 40 miles per hour with us up to 80 and so the la fire department reports reported that some of the embers were sparking fires as much as two miles downwind so um in some instances you know the fire could have been moving at 10 20 miles per hour i mean obviously that's just an estimate but uh faster than people can walk or run in some cases oh

Let's also talk a little bit about the sort of climate signal in all of this. For those who haven't been paying that much attention, here in Northern California, of course, we've gotten lots of rain. But in Southern California, kind of basically from San Jose South, there's been essentially no rain, right? That's correct, yeah. And so what does that mean for the fire risk? Obviously, it's just much higher.

Sure. So let's start with what kind of happened last winter, because I think that really sets the stage. I saw you interact with me last night on Blue Sky. So last winter, this is February, Los Angeles just had an incredible amount of rain. There were more than 11 inches of rain was recorded yesterday.

in parts of the Los Angeles area in a two-day span in early February. So what that rain does, you know, it really allows the grasses and the small, call them fuels for fire, to grow. So after that, we had a really hot summer in California. Statewide, it was the hottest summer on record. And the

In parts of LA, the World Series, game one, first pitch temperature was 103 degrees. And that made it the hottest game in the 62-year history of Dodgers Stadium, according to ESPN. So following that, we just had an incredible dry spell. Since October 1st, which is what we call the start of the water year here in California, parts of the Los Angeles area have less than a tenth of an inch of rain. So...

For those unfamiliar, on a pretty wet day in San Francisco, we'll get about half inch or an inch of rain. And so imagine just like rain for maybe an hour or two in the Bay Area, and that's all you get for months. And then after that, you know, just no rain for weeks. And that was followed by the strongest winds that have been observed down there in 14 years. So...

It's just a drought situation actually is escalating down there. The latest U.S. Drought Monitor update has reintroduced severe drought for parts of the L.A. County area and Orange County. So really, people tend to think about, you know, what's happening up here. It must be happening statewide. No, it's been two completely different Californias for the past three, four months. Yeah.

Let's look out a little bit ahead on the forecast. I mean, basically everything I've seen has said no rain like, you know, on the 10 day forecast. So what should we what else should we be looking for aside from, you know, hoping that that would have put these fires out?

Yeah, so unfortunately, you know, we're just going to continue to see a similar pattern to what we've seen the past couple of days where these, I mentioned these low pressure systems are kind of drier storms, you know, they might have some wind with them, but they're causing these Santa Ana winds because they're going all the way toward, you know,

Nevada, Texas. So while we are unlikely to see an event as extreme as what just happened the other night with those 80 to 100 miles per hour gusts, there are going to be times where winds locally could reach 50 to 70 miles per hour, these gusts, which will just continue to exacerbate the fire risk down there for days, if not weeks. There's maybe some hope in the more than 10 days out that we could get a tiny bit of rain, but it's not looking good at all.

I mean, I'm just trying to process what it might mean if you've got these actively burning fires and then you've got, you know, 10 days more of, you know, heavy winds and no rain. I mean, do we have any analogs to the situation in the past or anything?

I mean, I would love to say we do, but we do not. The Storm Prediction Center, which issues fire weather outlooks, yesterday issued an extremely critical wildfire risk, which was the most severe fire outlook that they have issued in the month of January since 2008 for the entire contiguous U.S. So that basically shows you that, you know, this fire risk in winter is

Yeah, man.

Anthony, people can find your work on Blue Sky on the Chronicle website, right? And you're also following, of course, you know, the National Weather Service is putting out a lot of alerts as well, right? That is correct. Yes, you can follow me there, sfchronicle.com forward slash weather as well. That would be a great way to stay in touch with our work.

Hey, thank you. Thank you so much, Anthony, for joining us. We've been talking about the fires in Los Angeles with the San Francisco Chronicle's newsroom meteorologist, Anthony Edwards. Of course, Forum, everyone here at the station, we're going to continue to follow up on what's happening with the fires in Los Angeles. And we all, of course, have so many connections to people in Los Angeles and think it's on all of our minds.

We're going to be right back after a quick break to talk about the Supreme Court taking up legislation that could effectively ban TikTok. I'm Alexis Madrigal. Stay tuned.

Set in Chicago during Prohibition, Some Like It Hot tells the story of two musicians forced to flee the Windy City after witnessing a mob hit. Featuring Tony-winning choreography and an electrifying score, Some Like It Hot plays the Orpheum Theater for three weeks only, January 7th through 26th.

Tickets on sale now at broadwaysf.com. Support for Forum comes from Earthjustice. As a national legal nonprofit, Earthjustice has more than 200 full-time lawyers who fight for a healthy environment. From wielding the power of the law to protect people's health, preserving magnificent places and wildlife, and advancing clean energy to combat climate change, Earthjustice fights in court because the Earth needs a good lawyer.

Learn more about how you can get involved and become a supporter at earthjustice.org. Welcome back to Forum. I'm Alexis Madrigal.

When Congress passed legislation last spring that would effectively ban TikTok inside the United States, some part of me just didn't believe it would ever happen. It would be an unprecedented step in American consumer tech governance, although obviously our government's gotten involved with foreign owners of things often. And so some part of me just never believed that TikTok would actually ever disappear from the app store.

Well, we're now down to the wire. The law is set to go into effect later this month and only a Supreme Court intervention might save it. Donald Trump's team has filed a motion for a delay of the law. There are a variety of fascinating legal questions here. To discuss them, we're joined by Jessica Levinson, professor of law at Loyola Law School and host of the podcast Passing Judgment. Welcome.

Hi, great to be here. We're also joined by Emily Baker White, an investigative reporter and senior writer with Forbes. She's currently writing a book on TikTok. Welcome, Emily. It's great to be here. So let's start perhaps, Emily, with the law passing last year. People may remember, I mean, this was a rare and very bipartisan effort. We also know that, you know, people

People say, well, it's not really a ban, but also it kind of feels to me like it is a ban. So what would the let's just describe the reality. What would the law actually do? Yeah. So the law said that ByteDance, TikTok's parent company, which is a big Chinese tech giant, would have to sell TikTok, divest from TikTok within a certain narrow window or TikTok would be banned in the U.S.,

The quirk there is that the Chinese government has told ByteDance that it cannot sell TikTok. It's not legal for ByteDance to sell TikTok or at least to sell the recommendations algorithm that controls TikTok. And so ByteDance has found itself in a really tough position. It has one major important government telling it you may not do a thing and another government saying you must do a thing or we're going to ban your app. Right.

Jessica Levinson, what kind of legal precedent is there for this kind of a forced sale? That's a great question. What we have is precedent that says when Congress concludes that there's a national security concern, Congress has broad leeway, which is not exactly answering your question, but to say that what we have is a lot of precedent from case law saying when the political branches or

look at a situation and they say there's a national security concern. And as I'm sure we'll talk about, the national security concerns here are data privacy, propaganda, content manipulation, that generally speaking, we should say judges don't get to substitute their own judgment for those of members of Congress and the president who looked at all the evidence and concluded there's a good reason

reason for this forced sale. In terms of do we have a case that looks exactly like this, where we have a social media app and we have members of Congress and the president saying there is a concern here, we're going to force a sale. We don't, but we have old case law dealing with, for instance, newsletters that were published by the Soviet Union during the Cold War and other eras in terms of the First Amendment case law that we can talk about.

Emily, remind us, why did lawmakers say this was needed? Like, what were they most concerned about? Yeah. So there are two main buckets of concern here.

One has to do with people's private information. There are many, many millions of Americans who use TikTok, 175 million roughly. And TikTok has a lot of information about those people. It knows, for example, what videos you watch, what videos you linger on before you keep scrolling, even if you never engage with them. It has your DMs. It has, you know, whatever else, whatever other information you have sort of given to the platform through your engagement with it.

And it has that information at a huge scale because it's used by so many people. And there is a concern on the part of the U.S. government that the Chinese government could use that information either in sort of aggregate ways or in specific ways to target individuals. And so does the Chinese government care which cat videos you like? No.

Probably not, but... Depends how weird they are, maybe. It depends how weird they are, and it depends... Probably not. It depends how... It depends who you are, right? If you are a Chinese dissident with family members in the PRC, uh...

They might care a lot about what they can get about you. If you are a member of the U.S. military working on sensitive military sites, they might care a lot about what they can get on you. If you are a journalist, they might care about where you are and who you've been talking to. And we can talk more about what happened to me on that front because ByteDance and TikTok actually tried to figure out who was sourcing me by tracking my location.

And so that is like there are specific situations in which that data bucket is interesting and important, even if most of the time it's just random people watching dance videos and cat videos. On the other side there, the other big bucket of concern is this sort of propaganda and censorship issue. And it's that everybody sees different things on TikTok.

I see a different TikTok than you see and your brother sees a different TikTok than my brother. And, you know, it's all sort of personalized to us. And so we don't know what TikTok might be pushing out to people because we don't have the same locus of facts. We don't have the same TikTok feed. And so there's a concern that the PRC government could pressure the people in China who make the recommendations algorithm to

to push out, I don't know, more information about X or Y issue to single mothers under the age of 35. Or less about Uyghurs or something like that. And so there isn't evidence of this sort of discourse manipulation right now. But as long as the people...

Who are creating the recommendations algorithm are in China. The Chinese government has said loud and clear that it can knock on their door and force them to act on behalf of sort of Chinese national security interests. And so it is possible that the Chinese government could at any moment sort of force those people to make changes to the algorithm. And that's the other thing the government's really worried about.

We are talking about this prospective federal TikTok ban. There's going to be arguments before the Supreme Court tomorrow about it. We want to hear from you. What questions do you have about tomorrow's Supreme Court hearing? Maybe you're a TikTok creator. Obviously, this sort of ban would be...

bad for you. But what do you think about the overall situation that we have here? You can give us a call. The number is 866-733-6786. That's 866-733-6786. You can email your comments and questions, forum at kqed.org. You can find us on all the social media platforms, Blue Sky, Instagram, or KQED Forum.

Gosh, you know, Jessica, one of the things that's fascinating is we know that all of the social media platforms to a greater or lesser extent gather most of these kinds of information and most people seem more or less to have adopted a sort of privacy nihilism that just says, "Well, you know, I like Instagram, so here's the deal."

How important do you think from a sort of legal as well as maybe technical standpoint that this information is running through the servers of a company that's owned by that that is headquartered in China?

Well, certainly Congress and the president have said that makes all the difference, right? That the difference between having a ban that relates to meta or relates to any U.S. owned social media platform is that we're not talking about a foreign adversary.

And we're going to hear those two words a lot in the oral arguments tomorrow, I think. And you're going to hear it over and over again from the Department of Justice, which is we are protecting U.S. citizens and U.S. users from a foreign adversary. So I think you're exactly right. And it's

fascinating because I teach a class on privacy and so much of privacy law deals with reasonable expectations of privacy. And that is changing. When I think about when I first started teaching the class versus now, which is more than 10 years later, my students have a different expectation of privacy. And that actually changes what is reasonable under the law based on handing so much over to social media app.

But again, the big difference here, legally, technically, in every way, is that Congress and the president are saying, we're worried. We're worried because...

It's not Canada. It's not the U.S. It's not a friendly nation, quote unquote. It is a foreign adversary. And so here are the reasons we are concerned. Jessica, so specifically, what is the hearing tomorrow? Like what like I guess it has been taken up on a really accelerated schedule. It's not a normal Supreme Court hearing, right?

It is and it isn't. And thank you for asking that. I mean, we keep saying the hearing tomorrow, the hearing tomorrow. So there will be oral arguments in this case, just like there are oral arguments in every other big case that you and I might talk about, you know, cases dealing with

the Second Amendment or reproductive choice or the environment, the power of the administrative state. So there has been briefing and the court will hear arguments the way they always do from both sides. What's the difference? It's exactly what you said, which is that this is on a super accelerated basis. And this was certainly not part of the Supreme Court's calendar at

until recently when they realized that they needed to take this up quickly. And, you know, there's a reason that the oral arguments will be on January 10th because the law goes into effect barring something different happening on January 19th. And the court did not actually put the law on pause while it's considering the case.

indicating to me that they really need to rule within nine days, which, as you know from talking about Supreme Court cases, is fairly extraordinary. Usually this is the moment when I or somebody like me says, and so we're going to hear oral arguments in this big case and look for a decision in June. Now I'm saying look for a decision around January 17th or 18th. Right. Yeah.

So if the Supreme Court chooses not to act or just doesn't intervene in some intense way, Emily, is the app just disappear? It's not going to disappear from people's phones, right? I mean, it's going to disappear from the Apple and Google stores?

Yeah. So there is precedent for this in a few other nations because TikTok has been banned in other places around the world and it has left the market in different places around the world. And so...

What probably will happen if the law goes into effect is that you will open up TikTok and there will be a little message that says, I'm sorry, our app isn't available in your country anymore. That's what happened when the app was banned in India. It's what happened when ByteDance left the market in Hong Kong. And so something like that probably will happen. Now, whether TikTok and ByteDance will have a chance to come back in the U.S. is a really big question.

And obviously, incoming President-elect Donald Trump has said he wants to save TikTok. The law doesn't give him that many things he can do to try to save TikTok, frankly. And so actually making good on that promise will be hard. But one thing the law does provide for is that the president, in his discretion, can grant one three-month extension for TikTok and ByteDance to work out a sale.

Now, TikTok and ByteDance say that TikTok isn't for sale. They say if we lose, we're leaving the market. That's that. Are they going to soften on that position if they lose in the court? I don't know. Probably it's worth a lot of money and they can just leave or they can leave and get money. And so leaving and get money might be a little bit better if they've exhausted their other options. But...

President Trump might be hoping that he could grant that extension. It's a little bit unclear on the text of the law whether he actually could grant that extension after the January 19th deadline has hit, but he might try. And so if you're President Trump, you might say, OK, yeah, they banned it. Look, I brought it back for three months. And then if ByteDance and TikTok don't sell, he can say, well, I brought it back. It's their fault they didn't sell. And so I'm curious to see if

If the government wins in the Supreme Court and the law goes into effect, whether President-elect Donald Trump will essentially try to bring it back for some temporary additional amount of time. You know, Jessica, this is it's fascinating because the Trump administration essentially filed a brief saying Donald Trump is the only person who can sort of negotiate this kind of deal. It was like this incredibly braggadocious kind of preamble deal.

Are there any signs that the justices are taking into account Donald Trump's like deal making power? I mean, suppose in hypothetical or argued for deal making power?

Well, I mean, we'll see tomorrow. But what I will say is that would be inappropriate. And what the Department of Justice has said is to put this law on pause, to wait for a Trump administration would be tantamount to something called a temporary restraining order. And you can only grant that when it looks like

And there's no indication that that would happen. And we haven't talked about the lower court decision, the D.C. Circuit, but they upheld the law. And that was a three-judge panel that was made up of a Trump appointee, a Reagan appointee, an Obama appointee. Mm-hmm.

So I think there is every reason to think that the Supreme Court should look at this law and not consider who the next president of the United States is. As you and Emily were talking about, there is this provision that looks like potentially you could kind of say, OK, 90 day timeout or pause or grace period or however we want to characterize it.

My understanding is that that has to be based on the idea that you can – the president can certify to Congress, look, there's a good faith effort to have some movement here. There are some almost legally binding agreements. And so that decision, I understand, in and of itself to say –

that the 90 day grace period is properly triggered, that could be challenged in court as well. So with respect to the Trump administration and their options, what I would offer is basically nothing until January 20th. After January 20th, if the law is upheld, as many expect that it will be, then it's everything from trying to strong arm a sale to saying to the attorney general, don't,

don't implement this law, don't enforce this law. But in terms of, you know, will the justices take into account Trump saying, I'm a master dealmaker, I can make this happen? That is, I would say, beyond the scope of the briefing.

Emily, talk to me a little bit about the D.C. court ruling that Jessica mentioned. How did they what was the basis of that legal decision? Yeah. So before I answer the question, a really quick note on timing. Of course, the Supreme Court wants to hear this case because there is this January 19th deadline. They also might have expedited briefing, at least in part because they want to hear from the Biden DOJ instead of the Trump DOJ on this. Had they not expedited briefing, we would have gotten into a situation where the

The Trump administration's DOJ would need to defend a law that Trump has now said he doesn't support. And the fact that the briefing is happening so quickly means that we're going to hear from Biden's DOJ, the DOJ that helped write this law, rather than Trump's DOJ, which might try to undermine it. So that's another interesting quirk of timing. As for the D.C. Circuit decision, yeah.

TikTok's primary arguments here have to do with speech. And there are arguments that come directly from TikTok and ByteDance saying that this law infringes on their speech rights. And there are also arguments coming from a group of TikTok creators who say that this law is infringing on their speech rights. And for the purposes of the Supreme Court, those cases have been consolidated, but there will be arguments from both groups of parties, one from TikTok and ByteDance and one from the creators. And the sort of basis of those arguments is that

In general, the First Amendment says that people should be allowed to speak in the manner and on the platforms that they want to, unless the government has a really good reason to restrict them. And we can talk about sort of levels of scrutiny and what that looks like. But basically, the government has to prove that they have a really strong interest in trying to solve a problem here. That's that problem of foreign interference and data privacy here.

And they have to prove that there wasn't a narrower way, there wasn't a less intrusive way to go about fixing that problem. And so the D.C. Circuit decision said that the government was within its rights to do this this way and that there wasn't an effective, less restrictive means to address the problem. And that's what TikTok and ByteDance are saying to the Supreme Court. That's not right. Yeah.

We're previewing tomorrow's Supreme Court arguments over federal TikTok ban. Joined by Emily Baker-White, an investigative reporter and senior writer with Forbes, currently writing a book on TikTok, as well as Jessica Levinson, professor of law at Loyola Law School and host of the podcast Passing Judgment. Of course, we want to hear your thoughts on the TikTok ban and the legal arguments thereabouts. Give us a call. Number is 866-733-6786.

forum at kqed.org. We're also on all the social media things. We'll be back with more right after the break.

Set in Chicago during Prohibition, Some Like It Hot tells the story of two musicians forced to flee the Windy City after witnessing a mob hit. Featuring Tony-winning choreography and an electrifying score, Some Like It Hot plays the Orpheum Theatre for three weeks only, January 7th through 26th.

Tickets on sale now at broadwaysf.com. Support for Forum comes from Earthjustice. As a national legal nonprofit, Earthjustice has more than 200 full-time lawyers who fight for a healthy environment.

From wielding the power of the law to protect people's health, preserving magnificent places and wildlife, and advancing clean energy to combat climate change, Earthjustice fights in court because the Earth needs a good lawyer. Learn more about how you can get involved and become a supporter at earthjustice.org.

Welcome back to Forum. I'm Alexis Madrigal. We're talking about TikTok going before the Supreme Court tomorrow with Jessica Levinson, professor of law at Loyola Law School, host of the podcast Passing Judgment, as well as Emily Baker-White, an investigative reporter and senior writer with Forbes, who's writing a book on

on TikTok and we're going to get to more of your calls and comments. Number is 866-733-6786. Forum at kqed.org. Let's bring in Caroline in Oakland. Welcome. Hi.

So I just wanted to mention, you know, like maybe we should talk about the hypocrisy and the double standards here because we've got Facebook and Instagram that tracks everything that we do and shadow bans us. And I've had my Instagram and Facebook disabled and deleted because I was posting too much pro-Palestine stuff. So we have a government and a media. We have media that's completely...

ignoring this genocide that's going in Palestine. And anytime any American person tries to bring it to attention, we just get dismissed. And none of the media here in our country

really is covering real media, right? So the fact that we're just saying all these things about TikTok when we're not even looking at our own country doing even worse, because I think right now the American people have, we have less trust in our own corporate government than we do in China. Right now, what the American government corporations are doing is like way worse than what China does.

can possibly do, I think. We just don't know that because we cover that up. Well, let's take it to the panel here. Jessica, I mean, I think...

Let's talk a little bit about what evidence of sort of specific harms have been brought to the court, you know, or that we know about. We know Congress may have looked at other things because that's kind of the way that we could get a basis for comparison versus, you know, what our own government did, say, you know, in the 2000s around, you know, the quote unquote war on terror and other things that our government has done with this kind of digital surveillance.

Sure. And I want to shout out to Emily for that very clear explanation of what the D.C. Circuit was doing and the levels of scrutiny. And when we look at a potential First Amendment violation, which is what we're looking at here, the ways the two step process that it takes for.

the government to satisfy the court that, yes, we have a good enough reason, and this is the best way to achieve that good enough reason. And to your question in terms of what Congress was looking at, what is that good enough reason? What we know from the briefs and from previous arguments by the Department of Justice is that Congress looked at classified information. They concluded that TikTok's Chinese ownership was

pose significant national security risks, as we've talked about, including potential data access by the Chinese government. That's the data privacy concern we've been talking about. Manipulation of content on the app, that's the propaganda and disinformation bucket that we've been talking about. And I'm just going to quote from the DOJ's brief here, the quote,

quote, is,

And so what we're not seeing, of course, is the classified information that led Congress to this conclusion. What we are seeing is that there was broad support and as Emily was talking about, broad bipartisan support for this legislation. Let's bring in Adam in Oakland. Welcome. Welcome.

Hi, yeah, my question is, what would stop foreign countries from banning U.S.-based social media companies as a form of retaliation? Or are social media companies working with foreign governments to make sure that doesn't happen? Or what would stop them from doing that? Yeah. Adam, thanks for that. Emily, you want to take this one? Yeah, sure thing.

There are foreign governments that have banned our social media platforms and the Chinese government. Yeah, you can't use Facebook and Instagram and YouTube in China. A lot of other foreign governments have have taken various steps to try to ban American apps as well. And

I think that's a major concern. I do want to go back to what the first listener said, too, where they said, you know, we don't trust Facebook and Instagram and YouTube either. And I think that's fair. We have really weak privacy laws in this country. And...

It, I think, would be a great thing if Congress got together and actually passed a stronger privacy law. But what we're dealing with here is something a little bit different because it really just has to do with who controls the pipes and who controls the pipes of these apps that have massive control over what information people see.

And so I think it is good and right to be worried about all of these companies' privacy practices. But it's sort of a different question to say, OK, given that, that's a problem we have to work on. This is actually a sort of separate valence of problem because if there is – if a foreign government does have – a foreign adversary does have leverage over the people who run these platforms, that causes a sort of different genre of problem that we also have to think about.

I also think there's something kind of darkly hilarious about...

the fact that the algorithm, which of course it's our stand in for a complicated bit of software that decides what to show you, that US companies largely tried to say, "No, no, no, we're just showing you whatever you wanna see." Meanwhile, TikTok just doubled down on like, "No, we have a fancy special algorithm that will show you exactly the right thing." And that was actually one of the big, is now one of the big

selling points of TikTok is this, you know, quote unquote algorithm that determines this, you know, incredibly engaging content.

And I guess, you know, Lisa writes in to say, why don't we copy their technology and create our own app? China steals our IP all the time. You know, Jessica, we kind of do do this already, right? I mean, there's nothing totally magical about what TikTok is doing. They've just managed to create a system that a lot of people really seem to enjoy.

So I'm going to defer to Emily on this for sure. My understanding is that TikTok was just able to create an algorithm that was quote unquote better. I want to be careful about yardsticks and measurements here. But that, yes, I mean, somebody else could. I think we tried. But there's some value in their particular algorithm and that they were just kind of

better at achieving their goals. What do you think, Ellen? Yeah, so there's a former FTC commissioner named Maureen Ohlhauser, I believe, who she popularized an idea when we were talking about algorithms in Silicon Valley. She gave this speech and

And she said everywhere the world algorithm appears instead use the words a guy named Bob. And is it OK for a guy named Bob to collect confidential price strategy information for all the participants in a market and then tell everybody how they should price that this is a quote from her speech. And she goes on and says like algorithms are made by humans. They are a compilation of a gazillion choices about how to prioritize content.

And when we say there is this mystical algorithm and it's so good at knowing what you want to see. Sure. OK, but it's also like it's a math problem and it has like a gajillion inputs and those inputs spit something out at the other end. And so when we're talking about people who control algorithms, it does not behoove us to.

to say, OK, the algorithm made the choice, so it's OK, it can't be biased or the algorithm made the choice, so it can't reflect, you know, a government's priorities or whatnot. Algorithms just reflect the people who write the algorithms. And so I don't want us to get into this idea that there's something magical about it. There isn't. It's math. Yeah. Yeah, no, I agree entirely. Kelly writes in to say, I keep hearing all sorts of people complaining that, quote, taking away TikTok is taking away free speech.

The same arguments are used about fact-checking posts on other social media. What I haven't heard anyone saying, though, is that free speech is not curtailed at all. Everyone is still free to say what they want. What is not guaranteed, however, is someone else being required to provide everyone a platform from which to speak. And Jessica, I think this kind of gets really directly into the question of

First Amendment rights in a digital era in which things kind of do work differently, right? It's sort of free speech, but not necessarily free distribution. I think that's what Kelly's saying.

And I have to tell you, one of the things that I personally am most interested in is to hear how the members of the court tackle this question, because they know how to analyze First Amendment questions. They may not know what algorithms or a guy named Bob, let's say, how exactly those things function. But what I will say is I think this gets the heart of the Department of Justice's argument here, where...

What they're saying is that we're not targeting – the legislation doesn't target protected speech. It targets a national security risk. And so they say counter to what ByteDance and TikTok and the creators are saying, which is that this is just about targeting speech that you might not like or might persuade U.S. users to think a certain way –

that what they say, and I'm going to quote again, "Nothing in the act would prevent a post-divestiture TikTok from presenting exactly the same content in exactly the same manner. The act targets control by a foreign adversary, not protected speech."

And so I think that's an idea that we're going to continue to hear. And it gets to the question of you can hear the same speech by the same creators. It just has to be that there's a different owner of this particular company. It's not about what the First Amendment is most concerned about, which is targeting either a certain content of speech or a certain identity of speaker.

And this is I mean, this is certainly something we're going to hear about more tomorrow, which is, is this just blanket censorship or is it actually a law that targets national security and has effects on speech? Interesting. Let's bring in Chris in San Jose. Welcome, Chris.

Hello, good morning. I am, like I said on the phone, I'm a TikTok employee, and I just wanted to touch on something real quick. There are plenty of U.S. citizens who work for TikTok, obviously, and we take data privacy very, very seriously. I worked at quite a few cloud companies, and here people go above and beyond technology.

to protect data, everything from data residency access, et cetera, et cetera. I'm not trying to downplay the national security concerns, but you guys are kind of leaving out that there are people who work diligently every day to protect US citizens' data. So I just wanted to broach that. Are you going to be following the Supreme Court oral arguments tomorrow?

Yeah, we've been following it for quite some time, all the progress. But obviously I can't comment on it. I'm not a representative or an authorized representative. Yeah, yeah.

All right, Chris, thank you. Appreciate that. And I think, you know, Emily, I guess I would say it's a good point and also a set of separate issues, right? I mean, there's sort of the sloppiness that we've seen from many American companies with, you know, data. And, you know, as even Chris admitted, there's also the sort of the national security issue sort of next to that, right? Yeah, totally.

The concern that the government has is structural. And like any big tech company, there are tons of people working inside TikTok day in and day out to try to do the right thing and make sure that this data can't be compromised. Those people work very hard. There are a lot of them. They are the vast majority of people. And I think what the government is ultimately worried about is the compromise of just a few people from within TikTok would be enough to trigger some of these concerns and the compromise of people who are overseas. By the way, most of the Chinese employees at ByteDance are not

Chinese government acolytes, right? These are just tech employees. They're tech employees. They're doing their job. Most of them do it very, very well. And so the concern is really sort of structural. It's about the ability for governments to

shake down and sort of abuse their power over people rather than the idea that the people who are working within TikTok and ByteDance have nefarious intent, which the vast, vast, vast majority, if not all of them, do not. Well, and I just want to say, too, I mean, if the history of the U.S.'s government approach to Internet data, particularly in the 2000s,

It shows, I mean, government employees approaching tech workers and trying to force them to do things works. And it's not like that's a far-fetched concern for any government, including Iran. That's all I want to say there.

Jessica, Jean writes in to say, you know, we mentioned that the Supreme Court must consider whether there's a less intrusive measure to regulate TikTok than completely banning it. And she wanted us to ask the question, what would be a less intrusive measure? Like, is there something that we can imagine?

Well, what ByteDance and TikTok are arguing is that it's disclosure and that the less intrusive measure is not to say you need to sell or the app will be banned, but just to say here is the source of the speech. And again, I think Emily laid this out really clearly, which is that there's different levels of scrutiny. But when it comes to the First Amendment and

questions about whether or not a law can survive the First Amendment, you're basically looking at two prongs, right? One is how strong does the government's interests have to be? And there's an argument here that the court will use the highest level of scrutiny, which is one, the government's argument, excuse me, interest has to be compelling. National security is

absolutely is something that falls within that bucket. And then two, this has to be the best way to achieve that national security goal, meaning there isn't a way that burdens speech

Any less where you could achieve this goal. And that's where you see in the briefs, the creators and TikTok saying disclosure, disclosure, disclosure. That is a less restrictive alternative. I don't know, given the D.C. circuits decision, given where I think this court may be going. I don't know that that will be a winning argument. Yeah.

You know, Emily, I just did want to get to your story as well. It does seem like it really matters that TikTok did, in fact, use your location data. Tell us more about that.

It was so dumb. I can't believe they did it. So what happened is that I got this big leak of a bunch of audio recordings of internal meetings at TikTok and ByteDance about Chinese access to data. And there were a ton of people in the United States, like the caller who called in, who were working really hard to try to secure Americans' data. But

This is back in 2022. The fact was, at the time, that data was freely available to lots of people in China. And so I wrote a story that said that. The company freaked out, said, oh my God, who's recording our meetings and leaking them to the press, and started an investigation to try to find out who my sources were. And a group of people inside ByteDance decided that a good way to find out who my sources would be would be to use my phone to see all the places I'd been and then unhide

cross-check that with the phones of all of their employees to see where those people had been and to see if we were in the same place at the same time. And what this did was prove that ByteDance could do what lots of American lawmakers were alarmed that they might do, which was

use TikTok to surveil Americans. And TikTok and ByteDance fired those people. I, of course, after obtaining the leak that caused them to spy on me, I then also learned from people inside the company that they were going to spy on me. And I wrote about it. And after all that came to light, they fired those people. They said, this is horrific. We're never going to let it happen again. But the fact that it happened in the first place

Begged the question, like, has it happened to other people who might be at more risk? And even if they, you know, they fired those people, they closed off that data window. What other data windows might exist within the company that they haven't found yet? And, you know, if they find them, they probably will shut them down. But how many of them are there? Yeah. Do you have a second phone now that you just have your TikTok phone? I've changed phones a number of times since that. Yeah. Yeah. Yeah.

We well, Supreme Court's can hear these arguments tomorrow about federal tick tock ban that will otherwise come into effect on January 19th. We've been joined by Emily Baker White, an investigative reporter and senior writer with Forbes, currently writing a book about tick tock and for obvious reasons. Thanks so much for joining us, Emily. Thank you. We've also been joined by Jessica Levinson, professor of law at Loyola Law School. You should check out her podcast Passing Judgment. Thanks so much for joining us, Jessica.

Thank you. Thanks so much to everyone who wrote in, called in. Really appreciate it. We will be back tomorrow. I'm Alexis Madrigal. Stay tuned for another hour of Forum Ahead. Funds for the production of Forum are provided by the John S. and James L. Knight Foundation, the Generosity Foundation, and the Corporation for Public Broadcasting.

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