What's the deal with TikTok?

March 14, 2024

Two developments on Wednesday provoked concern among readers of this newsletter: The House bill to “ban” the TikTok app and the dismissal of three counts in the indictment against Trump in the Georgia RICO case.

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House of Representatives passes bill to force sale or ban of TikTok

Did Congress ban TikTok?

• No. The House of Representatives passed a bill that would force the Chinese company that owns TikTok (ByteDance) to sell the social media app to a party not affiliated with China. If such a sale does not occur in six months, the bill would ban TikTok in the US.

• But . . . the bill must also pass in the Senate and be signed by President Biden before it becomes law. Prospects for passage of the bill in the Senate are unclear. See Associated Press, House passes TikTok ban bill, but its Senate path unclear.

Why is Senate passage in doubt?

• Because Trump suddenly changed his position and now opposes the “ban” on TikTok after a major investor in TikTok’s parent company visited Trump at Mar-a-Lago. See Business Insider, Trump Met With Billionaire TikTok Investor Before Trying to Save App.

If past is prologue, the Senate will likely not pass the TikTok bill because of Trump's opposition.

Is TikTok a national security threat to the US?

• Yes. TikTok amasses data on its users that could be used to track the users, infect their devices, and hack their credentials. China requires all Chinese companies to provide a “back door” to software applications to allow the Chinese government unfettered access to the data and computer code underlying the application.

• See The Encryption Debate in China: 2021 Update - Carnegie Endowment for International Peace. (“Beijing requires commercial companies maintain backdoors or key escrows to preserve government access to data for public security and intelligence gathering.”)

Oh, come on! How likely is it that TikTok will give user information to the Chinese government?

• TikTok would likely share information with the Chinese government.

• True, TikTok has said “it has never shared U.S. user data with Chinese authorities and won’t do so if it is asked.” The problem with TikTok’s denial is that Chinese law requires Chinese companies to turn over user information and computer code if requested. See The Hill, For Chinese firms, theft of your data is now a legal requirement.

• The Chinese National Intelligence law requires ‘[a]ll organizations and citizens [to] support, assist, and cooperate with national intelligence efforts.” If ByteDance or its employees receive a request to cooperate in Chinese efforts to spy on users of TikTok, the employees must cooperate with the spying efforts or face significant penalties and potential jail time. PRC National Intelligence Law (as amended in 2018) (chinalawtranslate.com)

• In fact, TikTok’s parent company has already used private data to track US journalists. See Security Week, China's ByteDance Admits Using TikTok Data to Track Journalists.

Won’t the bill to ban TikTok hurt Joe Biden?

• Possibly. ByteDance is urging users to lobby US politicians to oppose the ban. Some members of Congress are issuing statements opposing the ban on the grounds of free speech. See The Hill, Maxwell Frost comes out against TikTok ban, citing First Amendment concerns. While such worries are misplaced, TikTok users are unlikely to be persuaded by concerns that the Chinese government can access their personal data and order TikTok to cooperate in spying operations.

What should we do?

• This is a complicated issue from a political standpoint. Trump and GOP members of Congress accuse Joe Biden of being “soft” on China. But when it comes to banning state-sponsored spying on US citizens by China, Trump opposes forced divestment of TikTok from ByteDance. Trump's position is motivated solely by the corrupting influence of campaign contributions.

• Political solutions (if the bill passes) include (1) ByteDance divesting TikTok by a sale to a third party or (2) a competitor creating a substitute product. Indeed, Instagram Reels and YouTube Shorts have similar functionality and have more users than TikTok.

So, if TikTok is banned in the US, it may not be the end of the world as we know it.

If I were forced to bet on an outcome, I would say Trump will block the bill in the Senate. Given the filibuster rules, Republicans—with some support from Democrats—may be able to gather 40 votes to prevent the passage of the bill.

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Judge McAfee dismisses three counts against Trump in the Georgia Rico case

In a surprising ruling, the judge presiding over the RICO case in Georgia dismissed three counts against Trump (and certain co-defendants). The ruling is procedural and turns on provisions of Georgia law that even Judge McAfee believes are unfortunate. (“This is an area of law where federal courts have achieved greater efficiency, and one might wish that future grand jurors could be spared this inconvenience for something so easily remedied.”)

As Judge McAfee notes, the deficiency in the pleading “can be easily remedied” and granted D.A. Fani Willis the opportunity to amend the indictment—which has not been dismissed as to the remaining 35 counts against Trump.

Philip Rotner provides an excellent analysis of Judge McAfee’s ruling in The Bulwark, Judge McAfee’s Dismissal of Three Charges Against Trump Changes Nothing.

Rotner writes,

The dismissed counts are incidental in the greater scheme of things. The core of the case against Trump remains intact. It is difficult to imagine that Fulton County District Attorney Fani Willis—assuming that Judge McAfee denies the pending motions to have her removed from the case—will do anything other than move forward with the remainder of the case. If anything, the absence of the six dismissed counts might streamline the remaining case and make it easier for the prosecution to achieve conviction.

As Rotner notes, Trump's call asking Brad Raffensberger “to find 11,780 votes” remains part of the RICO conspiracy charge:

Moreover, while Judge McAfee dismissed three counts against Trump for the highly specific crime of soliciting the Georgia House speaker and secretary of state to violate their oaths of office, the underlying acts alleged in those counts are still the subject of numerous criminal violations alleged in the indictment, not just the RICO claim.

Judge McAfee’s order is here: Order on Defendants' Demurrers.

While it is always difficult to make predictions, especially about the future, the fact that Judge McAfee granted D.A. Willis six months to obtain a superseding indictment suggests that the judge is not contemplating removing Willis from the case in response to the defendants’ motion to disqualify Willis.

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President Biden and V.P. Harris on the campaign trail

On Wednesday, President Joe Biden was in Wisconsin to campaign in a state where he managed a narrow victory over Trump in 2020. Biden also took the opportunity to attack Trump's recent threat to cut Social Security. See NYTimes, Election Updates: Biden campaigns in Wisconsin after he and Trump clinch nominations. (Accessible to all.)

And V.P. Kamala Harris will visit an abortion clinic in Minneapolis-St. Paul on Thursday, as she continues her leading role in the fight for reproductive liberty. (See article linked in preceding paragraph.)

Trump reportedly understands that his role in overturning Roe v. Wade is a vulnerability for his campaign—and is reportedly using abortion as a key screening filter for his vice-presidential picks. The problem for Trump is that nearly every choice on his current shortlist has taken extreme positions on restricting access to abortion. See Talking Points Memo, With VP Pick, Trump Tries To Dull Impact Of The Abortion Problem He Created.

Trump has no good options—and every candidate on his list is a product of the MAGA extremist movement. That’s why it is good to see V.P. Harris on the campaign trail with Joe Biden, leading the way in reestablishing abortion access.

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Opportunity for reader engagement.

As a reminder, Field Team 6 will be holding its Register Democrats Summit for 2024 on Thursday, March 14—a daylong meeting of grassroots leaders and members to maximize voter registration heading into 2024.

I will be speaking at 8:15 a.m. Pacific / 11:15 a.m. Eastern. There are many other notable speakers, including Paula Poundstone, Amanda Litman, Simon Rosenberg, Leigh McGowan, Jessica Craven—and more!

It’s not too late to register here: FieldTeam6: Register Democrats. Save the World. The program schedule is located at the link above.

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Concluding Thoughts.

The number of “nervous” emails in my inbox is on the increase. Readers are concerned about No Labels, TikTok, and the (alleged) erosion of Democratic support among young people and Black and Hispanic voters. There is a tendency to interpret every development in a way that disadvantages Joe Biden.

There are two problems with the reflexive instinct to view every development as bad news for Joe Biden:

First, we are in a volatile campaign environment eight months out from the election. Predicting how unexpected twists and turns will play out is nearly impossible. Will No Labels hurt Joe Biden? It depends on many factors. If No Labels runs two anti-vaxxers (a possibility), such a ticket would likely hurt Trump rather than Biden. Who will No Labels run as their candidate? No one knows yet—including No Labels.

Second, Joe Biden began his campaign last week—after the State of the Union. Biden has been on the road and on the attack since his address to Congress, while Trump has spent most of his time at Mar-a-Lago, calling into conservative talk shows. Talk show appearances give Trump plenty of runway to veer off-script because he has no idea what he will say next. On the campaign trail, Trump at least has a teleprompter trying to enforce some discipline.

If the rest of the campaign unfolds like the first week of head-to-head campaigning, Joe Biden has a strong advantage. And the GOP campaign is becoming more dysfunctional with each passing day. On Wednesday, the RNC dissolved community centers designed to reach out to minority voters. See NYTimes, RNC Shutting Down Community Centers Aimed at Minority Outreach.

So, let’s try to stay calm and concentrate on executing our game plan—which is the only thing we can do, anyway. Feelings of anxiety and nervousness are understandable, but action is the antidote to anxiety. Lean into the battle for the soul of America—just like Joe Biden.

Talk to you tomorrow!