The law requiring TikTok to sell to a non-Chinese buyer or be banned isn’t about free speech, said Olivier Sylvain, a Fordham Law professor. In a Spectrum News NY1 appearance, he explained that in backing the law, the Supreme Court’s focus was on data harvesting of consumer information. He also talked about the possible repercussions for other social media applications, and how President-elect Donald Trump might try to block the ban—noting that an executive order might be Trump’s only real option to prevent enforcement.
“The court is careful to say that it’s limited to the circumstances in this case. Remember, this is a case that is principally about Chinese influence and control over the consumer, the information consumers get, and the data harvesting of U.S. consumers. So if you limit it to that, which is what the court tries to be careful on, it doesn’t reach as broadly.
“The focus of the opinion is on the data harvesting of consumers’ information. Even though the plaintiffs argued that what Congress was really focused on was the content manipulation concern, … they also made the data harvesting argument, and this is what the court seized on.”
“[The court] said this is not a content-based regulation … and it is addressed to the concern that Congress had about the collection of consumer information. Now, that raises the kind of questions many of us ask about all the apps that collect information about consumers as a matter of course. It’s not just TikTok: it’s Instagram, it’s Facebook, it’s it’s X. So I guess this might give some of these companies some pause. I think the court tries to be careful about the limit, the scope of this, and focus on the threat from China and a foreign adversary.”
“This is addressed not just to ByteDance. This is also addressed to the app stores and to cloud servers. They too would be potentially in sights of a DOJ action, so Trump could sign an executive order that says, let’s not do anything. But, you know, I think if I’m a company that is impacted by this law, I would still be worried.”
“People have been reporting that Trump might sign an executive order that demands or requires DOJ [to]stand down, that they not enforce.
“People say that Trump may extend the deadline by 90 days. I don’t know if that is possible, though, because the statute requires that there be a deal on the table for that extension to be effective. There has been no deal on the table, even though people have talked about such a thing. So Trump would have to unilaterally extend the 90 days, without the requirements set out by the statute. So, you know, I’m not sure that is possible. What Trump could do is try to get Congress to repeal the law or write some different law.
“In terms of unilateral action, I’m not sure that there is much that he could do other than an executive order.”
