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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
N. Rodgers: Hey Aughie.
J. Aughenbaugh: Good morning Nia, how are you?
N. Rodgers: Well, I would be fine except I'm not, I'm crabby about something. Go ahead.
J. Aughenbaugh: Wait a minute, I just got whiplash with that one sentence. I'm fine, no one know, I'm like hey.
N. Rodgers: I'm not well, your stupid commerce clause.
J. Aughenbaugh: Wait a minute, I didn't write it.
N. Rodgers: I'm just saying it's your favorite. It's starting some controversy these days, so we have a quick in the news because I don't think people understand what happened with TikTok. What's going on with this legislation with TikTok?
J. Aughenbaugh: Because again, I love them, go on.
N. Rodgers: The one person who listens to this podcast who doesn't know what TikTok is. First of all, welcome to this century and second of all, TikTok is a social.
J. Aughenbaugh: Let's not be condescending.
N. Rodgers: I'm sorry. TikTok is a social media platform and it is extremely popular. It is short form, there's no long form on TikTok I think it's 30 seconds is the limit. I don't remember exactly how much but anyway, TikTok is a short form and most of the time, it's relatively light hearted because it's really hard to be angry in 30 seconds.
J. Aughenbaugh: You see a lot of videos in the United States, the subscribers to TikTok are overwhelmingly younger people. The name of the company that owns TikTok is ByteDance.
N. Rodgers: Sorry, they can go up to 10 minutes, so I didn't realize that TikTok could go up to 10 minutes. My bad, I apologize, I've never seen one that long, probably because I don't have that attention span.
J. Aughenbaugh: Well, because the TikTok videos I typically watch are the ones where babies are interacting with puppies.
N. Rodgers: I watched the dance ones, I'm hooked right now on the dance ones for Texas Holdem, Beyonce's song? I can't stand it, they're so fabulous. But anyway, so TikTok is owned by ByteDance.
J. Aughenbaugh: It's a company that is owned in part by the Chinese national government. Listeners, this is an in the news episode of civil discourse because we want to focus on something that Congress did and when we are recording is early May and when this episode gets published we also more than likely be early May.
N. Rodgers: That's right, we hope.
J. Aughenbaugh: Yes, so in late April 2024 Congress passed a bill and President Biden signed it into law that had two parts. First, the owners of TikTok had or do have 270 days to sell the company to a firm approved by whoever is president.
N. Rodgers: It is 270 days is beyond.
J. Aughenbaugh: The November election and the inauguration in January.
N. Rodgers: Whomever.
J. Aughenbaugh: Yes, is present. If the sale does not occur with 270 days and by the way, 270 days from the date the law was signed by Biden would put it at January 19th, then TikTok would be banned from operating within the jurisdiction of the United States. Now, there was a caveat.
N. Rodgers: This is where you get into the who might potentially be a different president because January 19th is the last day of the Biden administration.
J. Aughenbaugh: But if the president is convinced, progress is being made on selling the company then an additional 30 days may be granted to finalize the sale.
N. Rodgers: Which would put this at 300 days and a month into the new presidency.
J. Aughenbaugh: Now, I've been asked a whole bunch of questions, particularly among my students who use TikTok all the time.
N. Rodgers: Who are not happy about this.
J. Aughenbaugh: By the way, listeners, Nia and I cannot use our university computers to watch TikTok videos. Because the general assembly, the State Legislature in Virginia last year passed a law that went into effect on July 1st of 2023 that banned TikTok on any state computer.
N. Rodgers: It's been done in several states on state computers. Montana leaped out there and tried to do it on everybody in Montana and we've got an episode about that, you can go back and listen in the news.
J. Aughenbaugh: Yes.
N. Rodgers: That immediately got an injunction, because a judge was like, you can't do that. But so far, nobody has brought this to the Supremes. Anyway, we should state for the record that the reason that legislatures are so unhappy about this is the partial ownership by the Chinese national government, which does have a clause in all of their ownership that they may at any point ask for the data that is associated with the accounts on any platform including TikTok. When you set up your TikTok account you had to give certain amount of data, you had to give your name and your location. The United States federal government objects to the idea of a foreign government collecting information about American users.
J. Aughenbaugh: US citizens, because in addition to giving out that data you also have to go ahead and say you allow ByteDance to use your data. That's pretty customary with most internet accounts, banking etc.
N. Rodgers: They can track you, there's location data on there, there's all stuff like that. The aren't completely crazy in not being thrilled about it, but I have one word in response to the Federal Government on this topic which is Facebook.
J. Aughenbaugh: Hold on.
N. Rodgers: But let's get right.
J. Aughenbaugh: The big question and again, I think the media has done us a disservice because most of the reporting that I have read has not mentioned on what authority did Congress pass this law, passed the bill and Biden signed into law.
N. Rodgers: Congress actually does have to obey the law, they have to actually read the Constitution occasionally and see what's in it. They can't just say and we'll just make stuff up as we go along, it seems they do but they don't.
J. Aughenbaugh: Basically, there are two clauses. Two broad authorities that Congress relied upon in passing the bill.
J. Aughenbaugh: The Commerce clause authority to regulate commerce with foreign nations is found in Article I, Section 8, Clause 8 of the US Constitution. Congress has determined after holding a series of hearings that the Chinese government has a controlling interest in ByteDance. Therefore, it has the authority per Article I, Section 8, Clause 8 to hold a company controlled by that government and how it operates in this country. However, other members of congress relied upon the federal government's broad national security authority.
N. Rodgers: DHS.
J. Aughenbaugh: Yes.
N. Rodgers: Department of Homeland Security under which every other thing falls besides the Commerce Clause. If the government wants to do something it can always say in the interests of national security, we are going to ban flip flops and then no more flip flops.
J. Aughenbaugh: Which would really bother me because, as many of my students know, once the weather gets above about 60 degrees.
N. Rodgers: Cargo shorts and flip flops.
J. Aughenbaugh: Flip flops.
N. Rodgers: The Yankees T-shirt, cargo shorts and flip flops and a ball cap.
J. Aughenbaugh: A ball cap.
N. Rodgers: That's Yankees uniform for the summer.
J. Aughenbaugh: Because the federal government has claimed that ByteDance and by extension, the Chinese government now has access to a whole bunch of US citizens user data and can use the platform to influence US politics and elections, which would undermine US National Security. Now, in response Nia, how did the CEO of ByteDance, one Chew Shou Zi, what did he say in response?
N. Rodgers: You got to admire his straight face in the congressional hearings when he said, the company's not owned or controlled by the Chinese government. Now, that's just straight forward not true. That is just not true because you don't get to be a dictatorship without dictating. That's one of the rules. That's one of the rules of dictatorship.
J. Aughenbaugh: That flows from the verb.
N. Rodgers: It does.
J. Aughenbaugh: Dictator to dictate.
N. Rodgers: Exactly.
J. Aughenbaugh: Which means, they control.
N. Rodgers: He probably shouldn't have taken that attack? What I would have said was he should have said all of that is voluntary. No one is forced to join TikTok. That is voluntarily given information by the users of that service.
J. Aughenbaugh: That's correct.
N. Rodgers: That's like you if you choose to walk around, let's say you walk across campus with your bank account number just on your T-shirt and your password. You don't get to be surprised when people go into your bank account and take all your money.
J. Aughenbaugh: Likewise you do.
N. Rodgers: In fact, look up sometime, Jeremy Clarkson did that. He published his bank account number of, I'm sure not his real bank account but a separate bank account and he said nobody can do anything with this and within an hour, it was all gone. Because people can do something with it. You voluntarily joining TikTok and saying, sure, I'll give you information and my data and my location and all the other stuff. That's what he should have said. Because Americans are choosing to give this to the Chinese government. We're not making them.
J. Aughenbaugh: You don't have to.
N. Rodgers: You compelling people to join TikTok. As factual not currently. When Bay is queen, we might have to.
J. Aughenbaugh: But nobody says that you have to do this or you're going to go to jail. You decide to use TikTok or use Instagram, or use Meta which used to be Facebook or use X, which used to be Twitter.
N. Rodgers: Lots of people left when Elon Musk bought it. They were like, peace out, I'm done. It's a freedom thing to me. I'm casting a bit of side eye at legislation. I'm assuming this will go to courts. Will this go to courts, Aughenbaugh? Long before it gets.
J. Aughenbaugh: I suspect it will go to court but it won't be ByteDance a lone bringing challenges.
N. Rodgers: Well, it should be the ACLU, first of all. Because they bring challenges to all things.
J. Aughenbaugh: Because ByteDance at some point when the law starts to be implemented, so when the justice department starts warning ByteDance, the clock's ticking and you only have 180 days left or 90 days left. How's the sale of your company going? That's where you might see ByteDance go ahead and say, I challenge both the commerce and national security logics behind the law. But Nia, you are also correct. The second constitutional law challenge will be focused on the first amendment. It would not shock me. An interest group like the ACLU will bring a first amendment freedom of speech challenge on behalf of a whole class of TikTok users. You're already seeing this in the media where you have typically young users of TikTok saying, this is how I communicate with the world, with my friends.
N. Rodgers: This is how I run my business. This is how I protest in the world. This is how I get information out about what's going on in my country where there are legit dictators who are stomping on all of our rights. There's a lot of stuff on TikTok. Journalism groups will join this lawsuit. There will be all kinds and I'm not entirely certain that the US government in a capitalist society can compel you to sell your business. That seems dicy to me. There's a really interesting question there.
J. Aughenbaugh: Well, they can and they have done so in regards to the application of the Sherman Anti-Trust Act, which force monopolies and again, that's rooted in the Commerce Clause.
N. Rodgers: But you'd have to prove that TikTok was a monopoly.
J. Aughenbaugh: But in this particular instance, they don't have to prove that. All they have to go ahead and prove is there is the potential threat to national security and historically, as we've discussed in previous podcast episodes, the federal courts usually give wide birth to the political branches claiming national security.
N. Rodgers: It's true.
J. Aughenbaugh: Because federal judges are like, we're not experts on how to provide national security.
N. Rodgers: It's true. It's a fair point. But I don't think in 270 days ByteDance will have sold TikTok.
J. Aughenbaugh: No, Nia, my prediction is this is going to take easily two to three years to play out in federal court.
N. Rodgers: After the 270 days because they have to violate the guidelines first before anybody can sue anybody.
J. Aughenbaugh: That's right.
N. Rodgers: Well, not before. But if 270 days, the federal government will shut them down and then there will be an immediate lawsuit if there's not one before that. We won't see the end of this for, do you think three or five years maybe?
J. Aughenbaugh: At minimum two years.
J. Aughenbaugh: It would not surprise me.
N. Rodgers: Would they fast track it, because of it's popularity?
J. Aughenbaugh: Well, I don't think the federal judges will say we're fast tracking it because TikTok is popular.
N. Rodgers: Although that'd be awesome. I'm sorry. I was too busy watching TikTok to listen to your case.
J. Aughenbaugh: What they will fast track are the initial motions to stop the application of the law. At some point in time, ByteDance or some First Amendment group is going to go ahead and file an injunction, asking for the federal government to be enjoined or stopped from enforcing the law. That will get fast tracked. But in regards to the substantive case, that will take 2-3 years minimal.
N. Rodgers: Right now, someone somewhere is trying to create this lightning in a bottle. They are trying to create something that's similar to TikTok that people can move to because nothing stays popular forever. Ask Elon Musk. Twitter goes to X and X goes down in flame. It hasn't gone down in flame, that's not correct, but it doesn't have nearly the number of users, neither just Facebook. Remember MySpace?
J. Aughenbaugh: Yes.
N. Rodgers: Oh MySpace. I don't think it even exist anymore.
J. Aughenbaugh: But Facebook now is relegated to people our age because younger users don't use Facebook anymore. They're on TikTok, I know it. I got a 12 year old. If she came home one day and said, daddy, TikTok has been banned, she would be crushed.
N. Rodgers: From 2005-2009, MySpace was the largest social networking site in the world.
J. Aughenbaugh: Yes.
N. Rodgers: It apparently still exists sort of, which who knew? Exactly.
J. Aughenbaugh: I learned something new today. MySpace still exists.
N. Rodgers: Oh, no new articles have been published since 2022, so exists in some zombie afterlife. Nothing lasts forever. It'll be interesting to see whether TikTok can save itself before it gets replaced. But what we should take away from this really is that you should just keep using TikTok because it's not going away anytime soon.
J. Aughenbaugh: Also, remember too, our listeners for those of you who use TikTok. Understand, again, that these are substantive constitutional law questions that are going to have to be answered. Anytime you have new technology, you have these issues, right?
N. Rodgers: Yeah.
J. Aughenbaugh: Who owns it? How do they use it? Will the government go ahead and regulate it, etc. Here we have the classic first Amendment, if you will, constitutional law dilemma. On one hand, you got a bunch of people who are like, this is how I express myself. This is protected by the freedom of speech in the US Constitution. On the other hand, you have the government who says, yeah, but we have a job of protecting the collective. We're afraid that because ByteDance is controlled, owned by the Chinese national government, they will use the platform to influence our form of democracy.
N. Rodgers: Which they're probably trying to do.
J. Aughenbaugh: Listeners, I reference and I encourage you to listen to our episode with Judy Twigg about the use of soft power.
N. Rodgers: That's right.
J. Aughenbaugh: It is a really good example. Technology today is used by both bad governments, good governments, no matter how you define them, technology is used to infiltrate, affect, impact, influence how other governments and their regimes operate.
N. Rodgers: This thing of, oh, we think that people might influence the election, we think people already have.
J. Aughenbaugh: Sure. The United States has been doing it for decades.
N. Rodgers: Exactly. Every government does it, nobody is innocent.
J. Aughenbaugh: The former Soviet Union, now Russia. Again, China would be committing malpractice if they didn't.
N. Rodgers: Exactly. Just like the NSA hoovered up a bunch of people's information because that's what governments do.
J. Aughenbaugh: By the way, nice use of the verb hoovered, which actually has a double meaning for our listeners. Hoover used to be a name brand of a vacuum cleaner, but it also refers to the former director of the FBI, J. Edgar Hoover, who frequently engaged in illegal surveillance of not only foreign nationals, but US citizens.
N. Rodgers: Anybody. You should see the file on Martin Luther King Jr.
J. Aughenbaugh: But nevertheless, listeners, here's a little bit of background about what the United States Congress did and what President Biden signed into law.
N. Rodgers: We'll keep following as it comes along.
J. Aughenbaugh: Oh, of course.
N. Rodgers: Because this is going to end up in front of Scotus. I feel bad for J. Robb. I believe that at some point in the near future, he's just going to have a nervous breakdown.
J. Aughenbaugh: I think Chief Justice John Roberts would like an entire term of boring tax [inaudible] .
N. Rodgers: We're just not going to take anything interesting this time because we can't handle it.
J. Aughenbaugh: He would like a whole bunch of boring administrative law cases that maybe 12 people other than myself would be interested in.
N. Rodgers: Auggie would be the only person hanging out at the Supreme Court, but it's not happening this year.
J. Aughenbaugh: It ain't going to be happening in the near future. Particularly when you've got the United States Congress attempting to force the sale of TikTok. It was bipartisan, Nia.
N. Rodgers: We should end on that note that in fact, this was broadly perceived across the political spectrum as a good thing to do.
J. Aughenbaugh: Yes. That was one of the more shocking things.
N. Rodgers: Because it was not just Republicans. It was not just Democrats. It was a strong mixture of both saying, we don't like this. We don't like this Chinese government involvement, and we want to make it stop.
J. Aughenbaugh: As dysfunctional as Congress [inaudible]
N. Rodgers: I think personally that they're going to be found to have been shouting into the wind, but we'll see what happens.
J. Aughenbaugh: But thanks, Nia. You can go back to watching dance videos.
N. Rodgers: Watching TikTok videos, that's right. That's exactly what I'm going to do after we finish recording. I'm going to turn back on Texas holdem and keep watching people dance.
J. Aughenbaugh: I'm going to watch babies being licked by puppies. I just love those videos. My day might be crap, I pull up TikTok, and they know me.
N. Rodgers: So they give you all those videos.
J. Aughenbaugh: There's this one video of this baby that is just being overwhelmed by a dozen lab puppies, and the baby is giggling, and the lab puppies are crawling all over the kid, and I'm like, life ain't too bad, and that's funny, and I wish I was that kid right now. Now our listeners are just like, wow, I just found something about Auggie.
N. Rodgers: Auggie's a dog person from way back.
J. Aughenbaugh: I like kids. Another video I watch on TikTok a lot, they actually have videos of people making coffee. I find it so comfortable.
N. Rodgers: You're like it's my tribe, these are my people. That is so you.
J. Aughenbaugh: They have this pleasant look on their face.
N. Rodgers: In this moment when I cannot make coffee, I will watch someone else make coffee. We can enjoy that.
J. Aughenbaugh: Thanks, Nia.
N. Rodgers: Thank you, Auggie.