TikTok on the dock(et)
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The first time we covered a potential TikTok ban on Today Explained was way back in August of 2020, when the president at the time said he wanted to ban it. For a while now, there's been this kind of floating concern in national security circles that there's something going on with TikTok that the government should be worried about. But Trump has really escalated the attacks on TikTok. The next time was in February of 2023, when he said he wanted to ban it.

when Congress was humoring a ban. You could kind of just throw a dart in the congressional halls and probably hit some member that wants it banned. Then again in March of last year when Congress passed the ban. This is not an attempt to ban TikTok. It's an attempt to make TikTok better. Tic-tac-toe. A winner. And then again again in April when said ban was signed into law.

This is consequential. Now the TikTok ban is heading to the Supreme Court of the United States. I'm Sean Ramos from Get Ready With Me on Today Explained. If you heard this, which was written by an AI, what would you think? I am afraid of myself. They forgot about me. Help me. Help me. Help me.

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Today Explained here with Vox's senior TikTok correspondent. No, sorry. He covers the Supreme Court. Ian Millhiser, the U.S. government passed a law requiring TikTok's Chinese parent company, ByteDance, to sell the company to someone who's perhaps not controlled by the Chinese government. But now, this very week, the Supreme Court is

is entering the chat. How come? Right. So there's a First Amendment challenge here. So what this law does is it says TikTok has to be owned by someone else. It can't be owned by ByteDance, which is a Beijing company, if TikTok wants to continue to operate in the United States.

And there's a First Amendment challenge to this. There's actually two separate First Amendment challenges. One is brought by TikTok, and TikTok is saying essentially that they have a First Amendment right to continue to operate regardless of who their owner is.

And then there's another challenge brought by TikTok users, influencers, you know, people who just want to be able to use TikTok and to publish on it. And they claim that they have a First Amendment right to continue using this platform. Seven other creators, as well as myself, have filed a lawsuit against the federal government in their attempt to strip us of our First Amendment right to freedom of speech. I'm going to the Supreme Court. Me being there is just a representation of

So there's two conflicting principles here. I mean, normally the government cannot tell media companies who their owner has to be. And for obvious reasons, you know, if the government could do that, they could just make all the newspapers sell themselves to Trump supporters. And then we wouldn't have a free press anymore. We just have propaganda. But...

There is a long, long, long standing rule going back at least to the Radio Act of 1912 and it prevented foreign nationals, foreign companies from getting licensed to operate a radio station in the United States.

And there's still a similar prohibition in effect right now. So right now, if you are a foreign national, a foreign company, even a company with a certain amount of foreign ownership, you are not allowed to get a license to broadcast on the radio in the United States. So this is very, very well established when it comes to that sort of key communications infrastructure. The federal government has long had the power to say Americans only.

TikTok does try to argue that the rule governing foreign ownership of media should not apply to TikTok because they say that rule is just about allocating limited bandwidth. Like there could only be but so many radio stations. There could only be but so many TV stations. And so given that you were dealing with a limited resource, it made sense for the government to make choices about who could and could not own it. So that's one of TikTok's arguments.

I don't think that's a particularly persuasive argument. And the reason why is that the reason we don't let foreign nationals control radio stations is national security. You don't want a foreign government, potentially a foreign adversary, to be able to broadcast propaganda. So who's going to be making that argument for TikTok in front of the Supreme Court on Friday? TikTok has hired Noel Francisco, who is a former solicitor general, used to be Trump's solicitor general. Huh.

And it's funny you mention Donald Trump. Once and future president...

Formerly a fan of a TikTok ban, but now coming back around and asking the government to pump the brakes, yeah? Yeah. So as a first-term president, Donald Trump tried to essentially ban TikTok, do the same thing that this law does, just do it using executive authority. We're looking at TikTok. We may be banning TikTok. It can't be controlled for security reasons by China. Too big to...

And the court said, no, you can't do that. You need an act of Congress if you're going to ban it. And so Congress actually did pass that law under the Biden administration. So it used to be that Trump and Biden agreed on this. The law that passed Congress had overwhelming bipartisan support.

Trump rather recently seems to have flipped his position. Frankly, there are a lot of people on TikTok that love it. There are a lot of young kids on TikTok who will go crazy without it. You know, I have a warm spot in my heart for TikTok because I won youth by 34 points.

You know, there was a lower court panel that already heard this case, and it was a bipartisan panel. The three judges were Srishtva Navasan, and Sri is, you know, he's been talked about as a potential Democratic appointee to the Supreme Court, very, very highly regarded Democratic judge.

The two other judges were Republicans. It was Douglas Ginsburg who's been on the Court of Appeals forever. Ronald Reagan actually tried to put him on the Supreme Court in the 1980s. That didn't go anywhere because of a marijuana scandal. But like someone who's been a prominent Republican judge for a very long time and then the newcomer on that panel is this woman named Naomi Rao who's kind of a MAGA hack.

And so you have three judges with three fairly different worldviews. All three of them agreed that the TikTok ban is legal, although Sri disagreed with the two Republicans as to why it is legal. But they all three agree that it is legal. OK. And so if all three of those judges agree that the ban is legal, I'm fairly confident that this Supreme Court is probably going to uphold the ban.

TikTok has had plenty of time to prepare for this eventuality of this ban in the United States. Have they figured out with ByteDance, the parent company, a new owner, an American owner?

There have been some news reports about some wealthy individuals who've discussed buying TikTok or getting together with other wealthy individuals to buy TikTok. Frank McCourt, the executive chairman of McCourt Global and founder of Project Liberty, is one of the potential buyers. We're working very, very hard to be in a position—

to buy the U.S. portion of TikTok so it's not shut down. O'Leary Ventures chairman Kevin O'Leary, are you still interested in TikTok? And if so, what is it for you? Yes, I'm very interested in TikTok. And for me is I know where all the revenue is. Those seven million small businesses of products and services. Guess what? They're all shark tankers. What I have not seen is any signs that a sale is imminent.

If this ban goes through, as you seem to think it will, and the US government will have successfully stepped in and pushed this media company out of this country essentially, what does that tell us about the First Amendment in this young year of ours, 2025? So the answer is that it matters a lot, not just like who wins the case, but what the Supreme Court opinion actually says. Sure.

And I'm hoping, you know, while I think that the TikTok ban is constitutional, I'm hoping that the Supreme Court writes a very narrow, very carefully crafted opinion that doesn't do any violence to the First Amendment at all. That simply creates a carve out and says you can say that key communications infrastructure must be owned by Americans and not by nationals of another country.

Obviously, there are ways the court could write the opinion that I think would have

Very alarming consequences. You don't want the court to write such a broad rule or create such a broad exception to the First Amendment that the government could abuse its power if it has the power to, for frivolous reasons, say, we think you have too much contacts to a foreign country, so sell yourself media company to someone that we like better. Like that must not be allowed.

But so long as the Supreme Court carefully polices the boundaries and says the rule is just – look, for key media infrastructure, things like who can broadcast on the radio, who can broadcast on the TV, who controls a social media platform that hundreds of millions of people use, the government can say if you want to use that in the United States, your company has to be owned or controlled by an American.

Ian Millihiser, his article is titled TikTok Should Lose Its Big Supreme Court Case. Read it at Vox.com. Ahead on Today Explained, it's not just TikTok. The United States is in its ban everything from China era.

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Today Explained is back. Ian Millhiser is gone because he just covers the Supreme Court. We want to talk about more of the technology, national security side of this story. So we reached out to Heather Somerville from The Wall Street Journal, who happens to cover national security and technology. Heather, thank you so much for joining us.

Is TikTok the only Chinese entity that the U.S. government wants to ban or are there others? I know we don't have electric vehicles from China, but what else is going on on the national security side? Yeah, TikTok is far from the only one.

that policymakers and regulators are targeting. There's a slew of proposals out there, some more formal than others by members of Congress and by regulators to prohibit or at least reduce the sale of Chinese technologies in the United States. Some of these that are more advanced than others are prohibitions on Chinese drones.

notably DJI, the world's biggest drone maker. The U.S. government has publicly confirmed time and time again that DJI drones are being used to collect information on U.S. critical infrastructure and pose significant risks to U.S. national security. Other technologies are connected cars with Chinese software and hardware.

The government says that these companies are collecting too much data on American drivers. Chinese LIDAR, Chinese routers, Chinese biotechnology services, all of these are targets for some sort of reduction in use, if not total elimination from the American market. OK, so let's just run through them all. You said drones, cars with Chinese hardware software, LIDAR, routers, biotech.

I mean, what is the paranoia for each one of these? Or is paranoia a loaded term? It depends who you ask. Some would say paranoia. Others would say well-founded national security concerns. So there's kind of two buckets of concerns here. ♪

The first really is around data, data access and data exfiltration back to China. So if we think about these technologies, drones, LIDAR, connected cars, routers,

They have access to American data. And the concern that is widespread among politicians on both sides of the aisles, among regulators, security experts, and across the federal government is that these sorts of technologies have, can, and will be used by China to get access to American data.

critical infrastructure and to exfiltrate that data back to China for China's military, industrial and technological advantage. And there's reasons for these concerns, not least of which are laws that China has on the books like the Chinese National Intelligence Law, data security law and the counter espionage law that requires Chinese companies comply with governments requests for access to data.

The second bucket is really a matter of market share and market dominance. And these technologies that we're talking about, China is dominant. It has over half the American market. And so there's a lot of concern about the survival of U.S. companies, as well as the vulnerabilities that the United States faces when it is so reliant on Chinese companies to provide things that people use every day, like drones.

And you say these are well-founded national security concerns, but I'm still hearing, you know, there's concern over data. There's concern over market dominance. Is it just concern or is there something the United States government can point to to say, look what they do with our data? Look what they did in X instance. This company that we were allowing to enter the U.S. market then took U.S. data and destroyed lives. It's a mixed bag. It's a mixed bag.

So we sort of need to take them one at a time. So if we talk about drones, the concerns about Chinese drones date back to at least 2017. And a lot of the concerns started with Beijing using DJI drones for surveillance of Muslim minority communities that the Chinese government has been widely accused of committing human rights atrocities on. Are we talking about the Uyghurs? We are talking about the Uyghurs. That's exactly right.

The U.S. Treasury Department specifically singled out DJI for providing drones to the Xinjiang Public Security Bureau, which American authorities allege are being used for the surveillance of Uyghur Muslims in the region. And there's purportedly classified information that Sandia National Labs uncovered about security risks posed by DJI drones.

There have been certain security experts that have done teardowns on DJI drones that have shown that they can induce and information back to Beijing. Now, there's lots of counter arguments to these concerns. People who use DJI drones say they can fly them without connecting them to the Internet.

They use American software on the drones. They keep all the data stored locally. Similar arguments are around Chinese LiDAR. They say the LiDAR aren't connected to the Internet. How is the data going back to Beijing? So there is quite a bit of pushback to some of these national security concerns from members of the public who like to use these products. If the abilities of the drones and the capabilities of the drones take place,

four or five steps backwards and the price goes up, that's terrible for the American people and let alone our local community members here. And yet none of that has swayed the U.S. government. The U.S. government is very much marching in the direction of eliminating these sorts of Chinese technologies from the American marketplace.

Okay, but still there, we're talking about what they could do. It feels a little more on the side of paranoia, boogeyman, than look what they are doing. Is that fair? I think it's fair to say that a lot of this is preemptive for fear of what China could and would do, particularly in the case where the U.S. finds itself in a conflict situation.

China over Taiwan. But getting back to some of the supply chain and market dominance concerns, which are also in a way a national security threat, if you think about the economic vulnerability there, the United States has, China has already taken steps to limit the access that US companies have to certain components, certain critical parts like batteries, showing that

When we rely on China so heavily for some of these key technologies, they can and will turn them off. And that can leave U.S. industry in a pretty desperate situation. When it comes to drones and LIDAR, I think people can probably infer what the perceived threat is there with routers. Is it just that, I don't know, the files are in the computer? Like they're going to figure out how Americans are using their internet? Yeah, routers...

It's sort of an unexpected one, right? We don't give a lot of thought to the routers in our house. It doesn't seem like particularly sophisticated technology that would be a national security risk. And I just assumed that my router was probably made in China or something like that. Yes, that's a fair assumption. But I've never looked. I respect my router's privacy.

That might be a one-way street. So if you think about routers, the routers have sort of come to the forefront of national security concerns when it comes to cyber attacks on the United States. As U.S. officials and cybersecurity experts have really pointed to the widespread use of routers,

Small office and home routers. These are the routers that we buy to put in our living room or our home office to power the internet. And how they are being used to kind of create these networks Chinese hackers can access and use as a jumping off point to

for bigger targets, whether that's American infrastructure, whether that's the U.S. government, the Defense Department, or as kind of touch points in between their various targets.

These small office, home office routers were not themselves the intended targets. The targets, of course, were our critical infrastructure. But what the Chinese were doing were using these easy targets to hide and obfuscate their role in the hacking of our critical infrastructure. In particular, this Chinese company TP-Link. This is a China-based company.

router company that has grown substantially in the U.S. These TP-Link routers make up this network that has been used by Chinese hacking entities to target Western think tanks, government organizations, NGOs, Defense Department suppliers, and others. There is particular concern that with Chinese routers like TP-Link that they're being shipped

customers with vulnerabilities, that they are not being patched, that they are not being fixed. And that in the case of TP-Link, that the company doesn't involve itself in security protocol that other router companies do. And so that's why there's a probe by the Office of Information and Communications Technology Services within the Department of Commerce and other parts of the US government to figure out how much of a threat does this company really pose?

And I think there is a chance that we will see TP-Link banned from the U.S. sometime this spring or this summer. Do Chinese companies make up a big part of these markets? You were saying that there are these concerns about market dominance. Yes, they are dominant and they're growing. And they're growing because they're generally much cheaper than the U.S. alternative. And in many cases, they're better than

People like to use them better. So they're good products that are generally cheaper. And that is why it is so difficult to extract them from the United States. And that is why there has been tremendous pushback from certain constituencies to banning things like Chinese drones when people don't think there's a viable American alternative. Yeah.

And does banning them help create better markets in the United States to create, you know, viable alternatives? That is the huge question, Sean. And there's not been a lot of the infrastructure put in place to ensure that American companies can fill the void if a Chinese company leaves.

I think that there's opportunity for U.S. companies to do better. We'll see what happens with the incoming Trump administration, but with the right balance of regulation and domestic investment and support for companies, there is opportunity for some of these U.S. competitors to start to regain market share. And I think many would argue that

that it is worth a little bit of pain to eliminate the national security risk of a near peer competitor having access to U.S. data, U.S. infrastructure, U.S. critical technology that many would argue China currently has with its outsized role in the U.S. in some of these technologies.

Heather Somerville, Wall Street Journal, WSJ.com, Abhishek Artsy, and Travis Larchuk made our show today. Welcome, Travis. They were edited by Amin Al-Sadi, fact-checked by Laura Bullard, and mixed by Patrick Boyd and Rob Byers. It's Today Explained.