And then all these people are, you're on a bus, you're in a household home, they did this in the evening, at least in the first wave, not the second wave. You know, this raises a ton of really, really hard questions, I think. And so the initially kind of like celebratory response, I think is misguided, and it's going to look pretty bad in hindsight as we dwell on this a little bit more in the last couple days. Well, let us now shift to our third topic. We're going to talk about a different type of security vulnerability in communications technology. And that is the TikTok Corporation. I don't actually know if that's the name of the corporation. I don't think it is. But the TikTok Service, which as we all know or a list of the podcasts are aware, is subject of a pending federal ban under federal law that essentially if the kind of Chinese parent company majority owner of TikTok does not divest from it by, I believe, January of this coming year, so they've got like four months left, then the platform will be banned in the United States. This law is now the subject of a legal challenge. This is something that the architects of this law anticipated and actually designed a special sort of expedited jurisdictional procedure. So we jumped right to the DC Circuit Court of Appeals to hear the first round of arguments in this this past week. Alan, you were there listening to the arguments, not there, you were listening to the arguments, not there, but in Minnesota. but listening to the live. You were in the cloud listening to them. Tell us a little bit about what you heard and what it means for this law and for the TikTok service generally, as this is kind of one of those big developments that is very national security driven, but it's going to be experienced by many Americans who use TikTok day to day, including many of our colleagues in your law fair, not me, but many of our other colleagues. Does anyone at

law fair use TikTok? I do not sure they

do. I think too a law fair kind of scared away, but a lot of people in the world do. That's

true, that's true. And most importantly for our purposes and for the lawsuit's purposes in America, there are 170 million active users of TikTok, which is a remarkably large number. So the kind of TLDR version of the hearing was that it was just an extremely bad day for TikTok. And I think it is very likely, and I have talked to many people who, and I should say I'm one of the kind of few legal academics who both supports the law and has always thought it was constitutional from the get go. And so most of my interlocutors are people who do not like the law and do not think it is constitutional. And most of those people that I've talked to are coming around to the idea that TikTok is going to lose pretty badly in the DC circuit. Earlier this week, we released a podcast hosted by our colleague, Kevin Frazier, with me and two other great academics, Jay Bambourin, Florida, and Ramya Krishnan, who works at the Knight Institute at Columbia, going through the argument in a lot of details. So folks are really interested in a deep dive. They can listen to that. But I do think the consensus increasingly is that TikTok is going to lose at the DC circuit and lose pretty badly, which I think would be notable because it is a very cross ideological panel. So the panel was chief judge Sri Srinivasan, who is an Obama appointee, was I think the acting solicitor general or the deputy, very high in the SG's office in the Obama administration. Judge Noemir Rao, who's a Trump appointee and Judge Douglas Ginsburg, who has been on the bench for actually a very, very long time, many decades, and is considered a kind of traditional kind of conservative. And TikTok was not really getting any joy from any of these judges. And so, you know, I think that when TikTok loses this case, as I again, really think that it will probably, I would guess, honestly, it could be as early as late next month, early November, I think the DC Circuit actually could move very quickly on this. And then it goes to the Supreme Court. Obviously, the Supreme Court will review this de novo. Yeah. And so really the DC Circuit's opinion is sort of, I like to think of it as it's kind of, it's less of an opinion as more of a memo to the bosses as a kind of, hey, here's a, here's a first draft of what we think this opinion should be. I think that they'll have a lot of weight with this Supreme Court. Quick

question, clarification on that, Alan. Does the statute restrict en banc review or cert review or is it still goes to en banc? I, my recollection is it still can go to en banc review, and then is subject to discretionary cert petitions. So like the Supreme Court might not take it up.

So what I would expect will happen is the DC circuit opinion will come down. It'll be a three oh loss for TikTok. TikTok could petition the DC circuit for rehearing en banc. I don't think that'll happen because I think what I'll, because I think everyone realizes that this is going straight to the Supreme Court. They don't have to take the case and it is, I guess, conceivable that especially if the DC Circuit upholds the law, the Supreme Court could just leave it at that. But this is such a high profile case, both from a policy perspective and also it's a very high profile digital internet first amendment law case, which as the court has shown, it wants to at least hear. Loves to take up and- The last couple of years. Exactly, exactly. It is the Lucy

of peanuts. I

think it's slowly getting better, right? Like it totally punted on Gonzales. It got a little better on NetChoice. I think it'll probably decide the Texas pornography bill this year.

So, yeah, I think it's going straight to the Supreme Court. Well, can I stop you there? I'm curious because as you mentioned, I believe the January deadline is fast approaching. We may get a decision quick on this, but then the appeals process. So how does it affect the ban or divest deadline?

Yeah, so this is actually a kind of interesting procedural question. So obviously, if the DC circuit upholds the law, the law is still in effect. And I guess, I mean, TikTok could ask to stay the DC circuit opinion, but that doesn't mean anything because the circuit opinion is upholding the law. So then presumably TikTok has to go to the Supreme Court and say, Hey, please hear our case. And in the meantime, enjoin this law, which is a big deal because you're not supposed to get an injunction until you can establish in addition to a reparable injury, which TikTok could easily establish because they'd be banned, that you're gonna likely win on the merits. But I don't think that the Supreme Court is gonna rule for TikTok ultimately on the merits. So how are they gonna give them an injunction in the meantime? Now, I could imagine the Supreme Court out of an abundance of caution saying, look, you know, like, like I can imagine the justices in conference saying to each other, look, we're likely gonna rule for the government here, but this is such a big deal and it would be so embarrassing if we let TikTok be banned and then unbanned them four months later, which would still be a huge blow that TikTok might never recover from actually, because of how many people would flee the platform. We're going to give you sort of like a special injunction, because we're being really nice about it. But then that raises another question, which is again not obvious, of what does the injunction actually mean? Because you can imagine it being enjoyed in one of two ways. It could be enjoyed in that the law does not go into effect until the Supreme Court ultimately answers the question in the summer. But of course, if the law then goes into effect in the summer, the deadline, both the January deadline and the 90 day extension that the law allows the president to provide, those have expired. So then the law goes into effect and TikTok is immediately banned without any possibility for some divestment negotiation procedure, right? Which you could imagine TikTok, despite all its bluster, might want to try if ultimately they know that they've lost. That's one possibility. I guess another possibility, which I guess the Supreme Court can do under its equitable powers, because it's the Supreme Court and they can do anything at once, is like, enjoying the law. And then when the law comes back into force in the summer, give TikTok like however many days TikTok had left. I mean, at that point the Supreme Court is really kind of screwing around, but again, like they can do whatever they want to do, but it's, it's not great TikTok. Yes. Ken and Will, like to be clear, they can literally do anything

they want to do. Is it safe to say also that the president, whoever he or she may be, come, deadline will extend this deadline? If it's still winding its way. I mean,

so it depends. I think I have to look more closely at the statute. I believe that the deadline extension is only available if the president finds that there is an ongoing negotiation. Like if there is an ongoing divestment process, but it just takes time because this would be a huge transaction, the president can add 90 days. But TikTok has very loudly said, we are never, ever, ever going to divest, right? Or ByteDance is never going to divest. So I'm actually not sure the president legally can extend the clock under that circumstance. This then raises kind of another question of, can the president do anything else? So I've been asked by journalists when I talk to them, what if Trump is elected, he has now come out against the TikTok ban crazily given that he literally tried to ban TikTok when he was in office. But it turns out that when you have donors, right, and you have no scruples, that's a hell of a combination. So, you know, could a President Trump unwind this? And the answer I think is no, actually, because the ban is a ban. It, you know, singles out TikTok specifically, does not give the President any role except this investment calendar 90-day extension. And so, you know, there's really nothing Trump could do. Now, he, I guess, tell DOJ not to enforce the BAM, but that doesn't actually help TikTok because the law is cleverly written in that although it's aimed at, let's say, TikTok, it's actually implemented not against TikTok per se, but it's implemented against the app stores. And so, like, if you're the general counsel for Google, right? I mean, Scott, you're the general counsel for lawfare. Tell me if I'm thinking about this correctly. If you're the general counsel for Google. Right? And if you're like the CEO comes and says, you know, so this law exists, but Trump has tweeted TikTok truth, whatever, that he's not gonna enforce this law. Should we keep TikTok on the app store? I think the answer would be that's insane. Of course we have to take TikTok off the app store because the law is still the law. We can't just sit here violating it for some like unspecified number of years based on like crazy man Trump say so. So if this law is upheld, short of Congress repealing the law, which I don't think even under Republican trifecta control, there would be the votes to do. And it would have to be like HR1 anyway, given the timing. And you know, I think TikTok goes away. Which is kind of wild.

I think that's probably right. I would say there's I think there's two avenues you could see a Trump administration or another administration that didn't want this to go through like maybe mess around with. Like one is the concept of what constitutes certifying the both the ongoing negotiations and what constitutes the completion of those negotiations, right? I'm trying to pull the statutory text and I don't have it in front of me. I can't remember where the role that plays. All I will say about that is that the Trump administration played very, very fast and loose with statutory certifications in its first term in office. And you could see that, I suspect that's more of a temporary solution than a long-term solution, but certainly is a possibility there. As to the question as to whether they could just like decline to enforce it. I don't think that actually really does work because this is going to have a lot of economic harm on the competitors of TikTok who otherwise would benefit if TikTok were shut down. And so I suspect they're going to sue maybe app stores for damages for not complying with the law, even though the president said, oh, I'm not going to actually do anything directly against you. That doesn't void them from civil damages. And there's no way the president can protect them from civil damages barring like maybe some super creative use of AIPA, which would be the deepest irony, because that's the same law he used to try and ban TikTok the first time. But I think it would require him to go way out on a limb further than he's probably willing to go, it'd be my guess. With the exception of maybe that certification provision gives a little bit of wiggle room, at least short to medium term.

Yeah, you're right. So the law provides that the TikTok is banned unless there is a quote qualified divestiture, and a qualified divestiture is defined as a divestiture or transaction that the quote president through an interagency process certifies, like accomplishes the goal. And so this interesting question might even implicate standing, Scott, your favorite thing, right? I thought there was an argument that this

whole matter didn't have standing, by the way, in terms of enforcement action. But Biden took enforcement faction five days ago. So I was like, oh, yeah, yeah, don't even get me started on that.

It's an interesting question of like if Trump just lies and says, yeah, there was a divestiture when there was like no divestiture and therefore doesn't end run around Congress. Does anyone have standing to sue? It's kind of a very, it's a very interesting question to enforce the law. But, um,

yeah,

I think there's almost really standing, but it's like, but the question is like, is there enough of a statutory definition that you could prove convincingly like he did not comply with it? Exactly. And like if there's enough threads there, you know, despite Loperbright, there's going to be plenty of deference on this particular question, particularly in national security space to the executive and like there might be room for them to manipulate it. But then again, divestment is like a pretty concrete concept. So it's like hard to get too far from that. So I don't know. The one thing I query for you, Alan, is I heard some accounts, I think this came up in your conversation with Jane and Kevin on the Lawfare Daily that came up this morning yesterday for those listening on the podcast, is that there was, I thought they detected a bit more of a split between Srinivasan and Ginsburg and Rao, at least on the framing of like certain national security interests, which might bear on the wing with First Amendment interests of like the public. And if there is a split like that, then I would say, on Bonk review, like could be a problem. Straight of Austin is just much more closer to the center of the active judges on the court in the DC circuit than Rao or Ginsburg. Ginsburg is like an old generation of judges. He's senior judge would even vote in on Bonk. And like he's just of a kind of old school conservative view. Rao is this new school Trumpy conservative view that is a vocal minority, but still a pretty well established minority. A lot of Rao opinions die on en banc. And so if there is a split there, I could see that being something that becomes relevant on en banc with Sredevas and triumphing, even if his view loses 2-1 at this level. But maybe I'm wrong. Is there a divide between the two? Yeah,

I mean, so it depends what you mean by divide and I'll just say on Ginsburg, who is just like the funniest because he was both extremely snarky, kept saying we're wasting all our time here. Like Ginsburg is, Ginsburg is out of F's to give. It's like, it's just an impressive thing. And at some point, I honestly thought he was gonna like, calm down from the bench and just start arguing for the government. Like it was getting rough to listen to. So, I will say, so again, part of it is, oral arguments are always a little hard to read. There's always a bit of a kind of in the eye of the beholder. I think that Jane and Rummia were a little more sort of hopeful on the tic-tac side than I was. And again, I think a lot of it comes in with your priors. We'll just have to see, right? It's hard to know which one of us is right. I totally agree that Srinivasan was the most friendly to TikTok, but only relative to how unbelievably unfriendly Rao and Ginsburg were. So I don't actually think that Srin, yes. And so I agree with you that Scott, if there is a, if it is a two-on you know, Rao writing for the majority and Srinivasan and descent. Yes. I could imagine that going to on Bonk. I just don't think that's going to happen. I think it's going to be a three oh opinion written by Srinivasan with maybe like an extra spicy concurring opinion from Rao or Ginsburg. And the reason I'm pretty confident in thinking that Srinivasan is going to rule for the government was he actually asked what I thought was a really difficult set of questions to TikTok and the users who are sort of arguing separately, but basically it's the same argument fundamentally, which is, you know, are you really telling? Are you really saying, right? And he actually asked with some degree of skepticism, are you really saying that if China and the United States were in a shooting war, this law would still be unconstitutional. And both lawyers, to their credit, did not take the maximalist position of, yes, they said, well, look, we still think, and the key point here is that strict scrutiny should still apply. And yes, we'll concede that in a shooting war, maybe the US could justify something like this. Now, of course, their next sentence is, but this is not a shooting war, which is totally true, right? But the problem with that is, if the law is constitutional in a shooting then it's constitutional at some point. And then you have the standard law problem of, well, it's a spectrum and where do you draw the line? Presumably, again, if it's constitutional in a shooting war, then it's constitutional, some like epsilon greater than zero to the left of a shooting war. And the question is, where is that? And if the petitioners want the DC circuit to strike the law down, they're asking the DC circuit to decide where the US and China are geopolitically. We're not in a shooting war. Are we in a Cold War? Are we in a geostrategic conflict? Are we frenemies? I don't know how to characterize this. And I think no judge wants to either. I don't think Judge Srinivasan wants to sit there and say, know, call me when it's an actual war. Like, he doesn't want to be in that position. No judge wants to be in that position. And you know, again, we haven't even talked about the classified evidence here that the judges are privy to, but the rest of us, including TikTok and the users aren't. I bet there's some scary stuff in there, right? Just some generally scary stuff about China because it's a scary situation. And so because Srinivasan, you know, also, you know, executive, you know, it's like a, like a, like a Elena Kagan type character, right? You know, as a solid liberal Democrat, but also, you know, big executive power person, because he spent years defending the Obama administration. He's super sensitive to that, to that fact. And so, you know, I think that, that exchange was when the wheels came off the bus for for TikTok. And I would notice that was a Srinivasan exchange. So that's where I'm getting my my three oh three oh beat down prediction from. I

was gonna make a joke wondering if we're gonna see a bunch of young content creators banding together to swing the youth vote toward Trump in the last ditch effort to save TikTok. Donald Trump is open.

That is the game. But we'll see.