Divest Or Ban? The Ticking Clock On TikTok’s Future

>> Tom Church: This is the libertarian podcast from the Hoover Institution. I'm your host, Tom Church, and I'm joined, as always, by the libertarian professor Richard Epstein. Richard is the Peter and Kirsten Bedford Senior Fellow here at the Hoover Institution. He's the Laurence A Tisch Professor of Law at NYU.

And he's also a senior lecturer at the University of Chicago. This week we're talking the forced sale of TikTok and what it might mean for free speech and cat videos, dance videos and the Internet. Richard, let's start with this. Have you ever watched a TikTok video?

>> Richard Epstein: Absolutely not, I'm the wrong generation.

I have enough trouble using any other kind of device other than state old email. I'm very good at the telephone, pretty good at email, but beyond that, my powers lapse.

>> Tom Church: No, no, come on, how about Instagram, YouTube?

>> Richard Epstein: Never, never, never. I use YouTube mainly to listen to classical music.

>> Tom Church: Okay, there we go. All right, well, let's talk about the actual bill that passed the house. It's called, well, people on the Internet and everyone else is calling it the TikTok ban bill or banning TikTok. It's called the protecting Americans from Foreign Adversary Controlled Applications act. Really rolls off the tongue.

Yesterday, the House of Representatives voted 352 to 65 to pass the bill. There were, I think, more Democrats than Republicans who voted no. And now it heads over to the Senate and an uncertain future. Hoping you can take us through. The question that is really being thought about right now is whether this bill bans tick tock.

What is it actually forcing TikTok to do?

>> Richard Epstein: This is not a terminological dispute, but a very serious one. At this particular point is under the direct control of the Chinese government, if it's controlled by anybody in China. And it turns out that there are very serious allegations that the platform is used as a vehicle for propaganda, for spying, and for lots of other things that are derangements for the United States.

And that either you separate the control from China so that the fans can have their way with I gather 170 million users, or essentially you're gonna have to ban it. So they're giving them a very hard choice. And if you're a good defender on free speech, you'll say you shouldn't put people to those kinds of choices and therefore they should be allowed to continue.

But as I've mentioned on this show so many times, I certainly have a very strong regard for free speech when it turns out to be political debates over the hours of the day. But when you start talking about national security issues, the justifications under the police power to prevent mortal harm to the United States can well take precedence.

So what you have to do in order to get the analysis right is to ask the question first, is there any such threat? Then the second thing you have to do is to ask whether or not this thing is over broad. And if it is, you have to narrow it.

It does not necessarily follow that you have to remove it. Looking at this particular case, even before you look at the particular problems and terms, noting that you've got a bipartisan majority in a very polarized age. The presumption is that these guys actually know what they're talking about and that the threats are very, very serious.

Now, my introduction to this barrier take place quite by chance, about ten years ago. I was sitting on an airplane next to a friend of mine named Robert Mazna. Who was on one of these committees talking about the question of the extent to which national security interests in the United States were sufficient justification for limiting free trade.

And I said, can I come to this meeting? And he said, sure, it's not classified. I went there and it absolutely blew my mind, because this is not a small or trivial exception to the general principle, free trade. It is something which is absolutely front burner everywhere you go.

Now, it starts, of course, with the kinds of things which have direct military application. And so you sit there and you listen. When you sell a state of the art american jet plane to a foreign country, do you give them the a plane or the a plane? Do you put restrictions on how they use it, how they get the parts to it, how they could sublet it to somebody else on and on.

And these documents run hundreds of pages in many cases, just trying to figure out how it is. You could get the allies their benefits without exposing you to national security issues. So you think, well, that's bad enough, but it turns out that there are many civilian kinds of machines that can be turned to military applications.

And so somebody has to sit down and try to figure out whether or not this is feasible in the short run, which country can do it, how bad is it going to be? So that the national security stuff comes up in an extremely large number of cases. And I'm not talking about Trump-like cases where you say, well, national security means that we can't import foreign steel, a raw commodity, which has no potential of that sort.

These are really hard cases. And TicTac falls into that, or TikTok, rather, falls into that particular class. So when you start looking at this thing, what you need to do is to take a meticulous look at the take of technology, the way in which it's deployed, and start to identify some of the problems that are with it.

And I've not done this in any great detail, and I'm not even sure it should be made fully public if there's classified information about it that is obtained in these studies. But I'm not going to sit there and say, this is a free speech case. I'm going to sit there and say, this is a free speech case, subject to a very powerful national security justification that everybody has had.

So if you go back to the First Amendment law and you even take a case like New York Times against Sullivan, you know, they start drawing some powerful distinction. So you wanna protest the American involvement in Vietnam based upon a series of intrigues that took place 20 years ago, all of which were political in nature, be my guest.

And in fact, that's what Justice Brennan held when he looked at these cases, the Pentagon cases. But if it turns out what you'd like to do is to get the schedule by which American military vessels are gonna go overseas in wartime, he says, sorry, this is stuff that is, in fact, protected.

And so you always have to ask in peacetime which side of that line you're on. And in a case of this particular sort, it's perfectly clear to me it's much more likely that you're on the national security side than you are on the political protest side. And so, so what you then have to do is to figure out what is a legitimate end.

And is there over protection, under protection? Because in some of these cases, what is needed if there's gonna be a disagreement between the House and the Senate or between the Congress and the president. Is to look closely at the provision and see if they should be tailored in either one direction or another.

And I have no priors on whether or not the bill, as the House proposes, is too weak or too strong. What I do have is a very clear notion, and that national security risks are extremely important. And when you start worrying about them, the wrong question to always ask is, how will a reasonable ally use these particular things?

It turns out the question you always have to ask, if you have a worst case scenario and one person gets that information, it is enough to spread throughout your entire force of your enemies. They share intelligence amongst themselves. So it's not that you need to sort of make sure that the average guy is gonna be fine.

The teenager who uses the system is only going to use it for legitimate purpose. What you have to do when you're talking about bans and sales of one kind or another is to take the worst case scenario and ask the question, how bad is this thing and what can be done to stop that?

And my guess is, given the pervasive nature of Chinese intelligence and their utter untrustworthiness in everything with respect to the world. I mean, whether it's building islands in the South China Sea or stealing American technology and trade secrets and so forth, you give them no benefit of the doubt on any issue.

They are basically, as far as I am concerned, Concerned, on all of these business issues, they are outlaws and have to be treated as such. Which means that the presumption has to be in favor of strict restrictions on the way that all of this stuff is done. Now, the question is, which will they do is more tricky.

My guess is they probably would want this thing to survive as a non-owned China company, and that's fine, you divest. But what you then have to do is you have to go in there and get a bunch of people to look inside this divested company and see whether or not they have the equivalent of human moles in the software of these operations, even after it's divested.

And so divestment is not a pure cure, it's a huge first step. But it seems to me that you then have to do a lot of other things to make sure that this thing goes forward in a serious way. So this is a humongous task on the way in which it goes.

So I find myself in this odd position of being a pretty strong libertarian who hasn't abandoned his political principles. But this is not somebody standing on a stage or on a stump making an argument that the national security issues are very, very large. And you don't wanna have the kinds of libertarians who live in a la-la land to say, well, so long as there's a lot of free speech going on on the network, we can't suppress it.

It's the bad stuff that determines the outcome, not the good stuff.

>> Tom Church: Yeah, Richard, I wanna ask about the effects, not just on TikTok. I mean, there's some worries on what this could mean for future companies. Before we get to that, I mean, I wanna mention, my favorite tweet is a screenshot of TikTok with a pop-up to contact members, Congressional members.

And the tweet says, the fact that the CCP has a push notification to 170 million Americans should tell you everything you need to know about this bill. Now, TikTok CEO is out pushing hard against it right now and saying, this will clearly lead to a shutdown of TikTok, which begs the question of whether the CCP will actually even divest or will try and shut it down.

But I wonder, the bill isn't just about ByteDance, which owns TikTok. It is about foreign applications controlled by foreign adversaries, basically defined as Russia, China, Iran, and North Korea.

>> Richard Epstein: Yeah, the Big Four.

>> Tom Church: The Big Four, right, but foreign-owned. But people were saying, okay, does this mean, could this be used in the future for future applications that we end up using or even media in the United States to get into.

And kind of, the government has a habit of creeping into other industries and borrowing justifications and expanding from there. Should we worry about it using this to regulate Meta or Facebook or Twitter or other ones? Do you think it's restrictive enough to not end up growing and the government taking this and regulating more?

>> Richard Epstein: It's absolutely the right question, and creep is always a problem. Let's just take the first point. The creeps in the government have already crept with respect to the ways in which these networks. There's the NetChoice suit, which is right up there right now. And it's very clear that the government has used all sorts of inducements and pressures to make sure that the platforms, basically, remove from them what they regard as misinformation.

Ie, true information that is critical of government policy. And so we're facing that particular problem right now. And one of the things that was tragic about the very bad and confused arguments in the NetChoice case is, it was allowed to be presented largely as a free speech case by these independent, autonomous parties.

Whereas, in fact, there are huge elements of government involvement and huge oceans of private monopolies involved in these cases. So that if you look at them, they really give a very different presentation. So the first response I have is all of these problems that you're talking about are right now on the table with respect to this current government.

And I do think that the Supreme Court is a little bit tone deaf on these issues. I mean, if you start looking at some of the key cases associated with the way this thing goes with the Tornillo case and with the Miami Herald situation, everybody says, free speech is just wonderful, but you have to read to the end of the opinion.

And what it says, there's another case out there called the Associated Press against the United States, in which it turns out that the antitrust laws apply when they're cooperative actions against parties who have the otherwise the right of free speech. And that's the way this case ought to be decided on the antitrust issues, not on the free speech issue.

So you are facing that right now. Now, the difference, of course, is it's more insidious when you start having the Chinese do all this stuff, because there's no question that if you stop this, what they're going to try to do is to figure out ways to, shall we say, enhance their ability to invade other companies and to do other things.

I will give you but one illustration right now, which is right under our nose. You take places like the University of Pennsylvania, they receive huge contributions from all sorts of Arab sources. And it obviously influences the kinds of appointments that are made to the faculty, the kinds of contributions that are made.

And it's one of the reasons why I think Penn has such a miserable record on all these various issues. So if you're talking about intervention, it's not just that buying various kinds of positions in the United States is another very serious thing that you have to worry about.

Is it going to be a ban that's going to work in every case? I kind of doubt that. I think everything else is going to have to be, is going to have to be handled in a very different way. I mean, you can't avoid doing this. So the problem that you talking about, this is a tip of the iceberg situation.

Remember, you're talking about four nations, none of which have the goodwill and prosperity of the United States close to their hearts. And they attack on multiple fronts at every single day in every single kind of way. And so you can't have a First Amendment barrier that is going to stop a lot of this stuff if it turns out that there are too many ways that they can circumvent the kinds of restrictions that are now in place, even with this legislation.

So again, what you have to do is to realize that the First Amendment has very important pieces to play. But when you start dealing with these national security issues and so forth, the interests on the other side are very, very large. I mean, there was a huge amount of stuff that went on in the 1950s and 60s about the extent to which various members of the Communist Party were entitled to have free expression and so forth.

And the cases went every which another way. But one has to remember, it wasn't the shining Alger Hiss who is telling the truth. It was the rather scruffy Whittaker Chambers who was telling the truth. And it may well be that Joe McCarthy was way off his base on a lot of these things.

But there were, in fact, documented, at the time, a number of people who were, basically, foreign spies, who had prior positions in the American government. And so you just can't treat this stuff as trivial, simply because you could find somebody who opposes it who may have gone a step too far.

And I think, in effect, if I were trying to advise everybody on how to think about it, you need to put a lot more attention onto these issues than you had to do even six months ago. And as far as I'm concerned, this first bill is just a first step in what has to be a very long dialogue.

My hope is that you could make this and continue to make this thing bipartisan all the way through, because the threats in this way are not against the left and they're not against the right. They're against the United States.

>> Tom Church: Richard, one of the awful things I've been seeing online in response to this bill passing through the House and heading over to the Senate has been that this insidious motivation, this is terrible.

That Congress only moved on the ban of TikTok because the ADL, the Anti-Defamation League, complained about a generational gap in support for Israel's actions against Hamas, and so only then did Congress decide we should ban TikTok. I'd love to know your reaction to the idea that APEC and the ADL is dictating social media ownership in the United States.

>> Richard Epstein: Dictating is much too strong a word, influencing is a doubtful word. There is no question that the Hamas Blitz with respect to the PR relationships has been the most effective, dubious, devious campaign ever imaginable. I mean, everybody in the Democratic Party is worried about Dearborn, Michigan. But you try to find anybody in Dearborn, Michigan who thought that the October 7 attacks were a mistake.

If their health closely allied with the Hamas movement, they will regard this as a form of justification. And so my view about it is, if in fact, these platforms are giving preferential treatment to stuff which is outright defamation, you have this constant problem. Is this something for which private suits can be brought?

And the answer is, there are several private suits being brought in the United States right now against, for example, the refugee organization. On the grounds that many of its members were part of Hamas and turned out to result in the death of Jewish people on October 7. So they don't get a pre built of health under anything.

And so the question then keeps coming up again, just how bad are these people? And they're very bad, and so I don't give any credit whatsoever to Hamas, but my view is that China has very much larger aspirations than just the situation in Palestine. Their major place of concern is in the Far East, and they are certainly trying to circle the wagons in a way that they could disrupt the independence of Taiwan.

And that's one of the things that they're going to try to advance. This is not dominantly Israeli issues. So I think what you have to do is to say there's a lot of propaganda on these things which we don't wanna pay the slightest bit of attention to, it's really terrible.

But I don't think we want to say that APEC has this mysterious influence. This is one of the serious problems that Jewish organizations always face. They have to have huge resources because they live in a very hostile world. And then everybody says that whatever they get is gonna be in some sense insidious because they have American Jewry behind them.

I don't think that's true, I mean, there was a recent issue involving the flappable Mr. Charles Schumer, who said, what I'm concerned is that the Israelis got the wrong foreign policy. And this could be influenced because he's worried about what's going on in Dearborn, and then he backs off it within the hour, making the right conclusion.

It's not for the United States to tell Israel who its leaders ought to be, and Joe Biden should be told the same thing. And I think in effect, what's happening is the reason that the concerns are so great is that the ability to give false propaganda through these networks is just huge, and they all have the same directional bias, this is not random.

And so if you think about Hamas, all of its figures about casualties are completely inflated. If you look at some of the various tragedies that have taken place, they're not Israeli weapons, they're wayward rockets fired by one of Hamas's allies. If you start looking about the question of whether they have human shields, the answer is they do.

Do they locate their facilities underneath so called neutral hospitals? The answer is they do that. So they've never said a single true thing thus far. And so it seems to me that being worried about an outlet which does this is perfectly legitimate. The hard question is, what's the under these circumstances?

And there's a kind of a general statement which says group defamation is not actionable, to which there's a huge exception. If it turns out that you're a particular individual who's been hurt by this, and this battle is gonna go on not only in the legislature, but right now it's going on in the courts.

And I mean, and the UN has a serious problem with respect to this. Guterres is, I think, just a terrible general. He says we have to keep aid flowing. That may be true, but you have to get everybody out of the situation and start with another organization because they're simply too corrupt to do what they're doing.

And as far as I can see, it's much harder to give aid than you would think, because Hamas is working actively to undermine everything that's going on. So what you have to do is to look at all these propaganda campaigns, all the tic tac stuff, all the postings of one kind or another as part of a comprehensive, very difficult to interpret global situation.

And frankly, the current American administration is just not up to it, they're too confused and they're too indecisive in anything that they want to do. I think the Israelis have done by and large, an admirable job. And if it turns out that when this thing is over, they want to give Mr. Netanyahu the heave, I think they're perfectly entitled to do so.

And if they want to keep him in power because they think that for all of his mistakes, he's still the best hope that they have, that's their choice as well. And I think that Schumer and Biden, everybody has gone way off on the wrong limb when they're trying to tell Israelis how to run their internal affairs.

But on the other hand, Hamas is not a nation, a terrorist group, you can tell them you're not entitled to run anybody's affairs. The real question is, what about the Palestinian Authority? Well, until they start to speak against Hamas in any serious way, they cannot be regarded as a credible democratic force.

Abbas is old, but he's also very devious and dubious. And a guy who's been in office for 19 years on a 4-year election victory is not somebody whom you could say is the champion partisan of democracy. So this thing is only getting worse in terms of what the Middle East is.

And this is one hopeful sign, not only for the Middle East, but it's time for the United States to get real about the fact that we've allowed our allies to outgain us. And what are we doing? We are largely clueless. We have a president who wants to cut down our military preparedness and so forth.

I regard that as gross negligence in the extreme. We have a president who wants to shut off natural gas shipments overseas when it's absolutely critical that we flood the market because we must undermine Russia's ability to get all sorts of money out of its sales. And you don't do that through sanctions, given the third party of Asia that existed, the only way you do that is to flood the market.

But we have the most clueless administration in there. I don't know whether the Republicans would be better, and I'm not trying to make a political speech, but the current policies are untenable and will lead to ruination throughout the world for Israel, for the Ukraine, and for the United States and its European allies.

>> Tom Church: You've been listening to The Libertarian podcast with Richard Epstein. As always, you can learn more if you head over to Richard's column, The Libertarian, which we publish at Defining Ideas at hoover.org. If you found this conversation thought-provoking, please share it with your friends and rate the show on Apple Podcasts or wherever you're tuning in.

For Richard Epstein, I'm Tom Church, we'll talk to you next time. This podcast is a production of the Hoover Institution, where we generate and promote ideas advancing freedom. For more information about our work, to hear more of our podcasts or view our video content, please visit hoover.org.