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Nine Things We Learned From TikTok’s Lawsuit Against The US Government
TikTok CEO Shou Zi Chew testifies before the House Energy and Commerce Committee, March 23, 2023.
AFP via Getty Images
Yesterday, as they promised they would, TikTok and ByteDance filed a lawsuit against the federal government challenging the constitutionality oft the Protecting Americans From Foreign Adversary Controlled Apps Act, known as PAFACA or just “The TikTok Ban Bill.”. The bill, which was passed by Congress and signed into law last month, requires ByteDance to sell TikTok’s U.S. operations by January 19, 2025 or face a ban of the app in the United States.
Most of the arguments in TikTok and ByteDance’s complaint are things that we’ve reported before — including details, acknowledged in the suit by the companies for the first time, but reported exclusively by Forbes last summer, of an ultimately unsuccessful negotiation with the interagency Committee on Foreign Investment in the United States. But here are nine things that were new or noteworthy, and suggest where this fight may be headed next.
1. RIP Project Texas?
In the complaint, TikTok and ByteDance now allege that they have “invested” more than $2 billion in Project Texas, the legal and technological framework that formed the basis of the companies’ proposal to CFIUS through years of national security negotiations. The ultimate goal of Project Texas was to divorce ownership from control, allowing ByteDance to own TikTok and its algorithm while legally and logistically preventing it from controlling the app’s U.S. operations. But CFIUS rejected Project Texas in March 2023, and the passage of PAFACA shows that Congress, too, thinks it’s not enough.
The $2 billion figure is new, up from a claim by TikTok in early 2023 that the company would spent $1.5 billion on the initiative. Tech companies have for years sought refuge from regulation by portraying themselves as engines of the U.S. economy, and part of TikTok/ByteDance’s strategy here is to project confidence and show that things are business as usual. But continuing to invest in a proposal that the U.S. government has repeatedly rejected may amount to throwing that money away, if the courts say the ban bill can stand.
2. Ghosted By The Government: When The Deal Really Went South
TikTok/ByteDance paint a dramatic picture of CFIUS ghosting them at the negotiating table between August 2022 and March 2023, when CFIUS said that ByteDance would have to sell TikTok or face a ban in the U.S.
“From Petitioners’ perspective, all indications were that they were nearing a final agreement,” the companies write. “After August 2022, however, CFIUS without explanation stopped engaging with Petitioners in meaningful discussions about the National Security Agreement. Petitioners repeatedly asked why discussions had ended and how they might be restarted, but they did not receive a substantive response.”
A lot happened in the months when CFIUS wasn’t talking to TikTok/ByteDance. It was during those months that Forbes revealed a plan by ByteDance’s Internal Audit and Risk Control department to surveil reporters in an effort to ferret out their sources, and ByteDance conducted an investigation showing that its employees had in fact surveilled journalists. ByteDance fired four employees as a result of what it subsequently referred to as “the misguided effort,” including its chief internal auditor and the Beijing-based executive that he reported to.
3. ByteDance’s Founder Lives In Singapore, Not China
The companies say that ByteDance founder Zhang Yiming, a Chinese citizen, is officially living in Singapore. Yiming, who prefers to go by his given name, has lived part-time on the island nation since 2022, where he rode out much of China’s most draconian COVID restrictions, but this is the first time the companies have described him as legally domiciled in a country other than China.
4. TikTok and ByteDance Finally Admit How Tightly They’re Wound Together
TikTok/ByteDance are now leaning into a thread that we’ve reported on for years: that the TikTok app is inextricably tied to the rest of ByteDance’s systems, in a way that makes separating them effectively impossible. “Moving all TikTok source code development from ByteDance to a new TikTok owner would be impossible as a technological matter,” the companies argue, before launching into an explanation about TikTok’s “millions of lines of software code that have been painstakingly developed by thousands of engineers over multiple years.”
It’s an ironic pivot away from a prior narrative in which TikTok and ByteDance insisted they were more separate than they really are. They have claimed time and again that US-based execs are running the show, despite extensive reporting showing that this isn’t and hasn’t ever fully been the case.
The companies also say that “to keep the platform running,” TikTok engineers “would need access to ByteDance software tools, which the Act prohibits.”
To be clear: TikTok’s reliance on other, non-TikTok ByteDance tools is one of the reasons lawmakers are worried about it! The companies’ new Project Texas entity, USDS, has reduced its dependency on ByteDance systems like Lark, the company’s all-in-one office suite, and Seal, its VPN. But their acknowledgement that TikTok still needs to run through ByteDance’s pipes eliminates any doubt that TikTok is still not just owned, but very much also controlled, by ByteDance today.
5. We Don’t Do Punishment By Legislation
PAFACA sets out conditions for how a president can designate an app as a “foreign adversary controlled application.” But it separately places TikTok — and all other ByteDance apps — in this category, without requiring the same presidential designation that is required for any other apps that might someday be covered by the law.
This structure is pretty weird! It likely came about because some lawmakers didn’t want to give the president discretion about whether to designate TikTok or not. By naming a specific app and its parent company in the bill, though, the lawmakers have opened themselves up to one of TikTok and ByteDance’s key claims: that the law is an unconstitutional Bill of Attainder — in layman’s terms, a law that seeks to punish a specific person or entity.
We don’t do punishment by legislation in the U.S.; we do it in the courts. So if TikTok can prove that the intent of this bill was to punish or ban it specifically, then the courts will likely find that the law can’t stand.
6. The Chinese Government Will Call The Shots On A Sale
TikTok and ByteDance flatly acknowledge in their complaint that the Chinese government would prohibit ByteDance from selling its famous recommendations algorithm. We’ve heard this from nearly every expert out there, but hearing it directly from TikTok/ByteDance makes clear that the Chinese government is the ultimate arbiter of who gets access to TikTok’s secret sauce.
7. Lawmakers Will Have To Eat Their Own Anti-TikTok Rants
We wrote a few weeks back about how lawmakers’ comments about the content on TikTok might come back to bite them in court, making it harder for the government to prove that it wasn’t acting out of hostility toward the substance of the conversation on the app. Our prophecy came true: TikTok/ByteDance argued exactly this point in their complaint.
8. About That Weird Product Review Carve Out
Lawmakers made a weird carve-out in their law for sites that host product reviews, travel reviews, and business reviews. TikTok and ByteDance say it’s unfair.
The bill is targeted at large platforms where users can create their own posts and view others’ posts — i.e. platforms that enable user-generated content, or UGC. Review apps are technically UGC apps, but they don’t have the same potential influence over discourse and culture as social apps do, so Congress exempted them from the law.
TikTok and ByteDance are now claiming that this exemption favors certain speech (reviews) over other speech (non-reviews). It seems unlikely that legislators were actually trying to privilege one topic of speech over the other, but that may not matter if the courts determine that the exemption effectively does so.
9. Everybody Has Been Gathering Evidence For This Showdown
Both TikTok/ByteDance and the government have spent years preparing for this moment — one where TikTok/ByteDance will argue that the ban bill is ill informed and overbroad and the government will ruefully shake its head and say, “we tried, but there was no other way.”
The First Amendment will govern most of the arguments raised by TikTok and ByteDance. But the First Amendment isn’t a blanket protection for all speech all the time. The parties will fight about which level of scrutiny applies in this case: whether the government will have to show that the law is substantially related to an important government interest (intermediate scrutiny) – or whether it will have to show that the law is narrowly tailored to achieve a compelling government interest (strict scrutiny). But that legalese is all just gradations of the same basic question: was this really necessary?
TikTok and ByteDance will pull out their last four years of communications with the government to claim that it wasn’t. They will say — they do say, in the complaint — that Project Texas would’ve worked. That a national data privacy law would’ve worked. That there were plenty of narrower things Congress could’ve done and didn’t do, things that were more targeted to their actual concerns. Because Congress didn’t do those things, TikTok and ByteDance say, they didn’t even try to take the narrowest path here.
But the government has almost certainly been amassing evidence too, even if we haven’t seen it yet. Back in 2020, TikTok and ByteDance defeated President Trump’s first attempt to ban the app in part by arguing that the whole thing was rushed. After that, the Biden Administration spent years in negotiations with the company, engaging with the inner workings of TikTok and ByteDance’s systems. Its agencies also spent many months examining the companies — the FBI and DOJ in a criminal investigation and the FTC in an investigation about the companies misleading users about who could access their data.
TikTok and ByteDance say that PAFACA was rushed just like the Trump ban attempt – from its conception largely in secret to the fact that it was quickly voted on and then appended to an omnibus foreign aid package, all before their lobbyists could get a word in edgewise.
Even if PAFACA was rushed, though, the larger government conversation about TikTok hasn’t been. Years of CFIUS negotiations and agency investigations — as well as classified intelligence — informed the closed-door briefings that members of the House and Senate received before voting on the bill. So we’ll be looking at years’ worth of evidence from both sides as the parties battle it out in Round 2.
MORE FROM FORBES
Alexandria, Va. — Attorneys for former FBI Director James Comey and New York Attorney General Letitia James will be arguing in court Thursday that the federal indictments against their clients should be dismissed because Lindsey Halligan’s appointment as interim U.S. attorney in Virginia is unlawful.
The court decided to consolidate the arguments for dismissal soon after James’ arraignment. Both Comey and James have stated that Halligan’s appointment as interim U.S. attorney was invalid and unconstitutional.
She was named to the post days after Erik Siebert resigned as acting U.S. attorney for the Eastern District of Virginia amid pressure from President Trump to bring prosecutions against his political foes. Just before Siebert’s resignation, sources had told CBS News that prosecutors from the district were concerned he could be removed for not prosecuting James.
Halligan, a former Trump defense lawyer who later joined him in his second administration, was tapped as interim U.S. attorney in September after serving as a senior aide to Mr. Trump in the White House. Halligan, who was previously an insurance lawyer, took the helm of the U.S. Attorney’s Office in Alexandria with no prosecutorial experience. Mr. Trump nominated her for U.S. attorney in late September.
Comey was indicted in September on one count of making false statements to Congress and one count of obstruction of justice, related to Senate testimony he gave five years ago. Comey pleaded not guilty to both counts.
James was indicted last month on one count of bank fraud and one count of making false statements to a financial institution and pleaded not guilty. The Justice Department alleges James bought a house in Norfolk, Virginia, in 2020 with a mortgage that required her to use it as a second home, but instead ultimately rented it to a family and used it as an investment property. The department accuses James of misrepresenting how the house would be used, so she could obtain a lower interest rate.
Sources told CBS News that Halligan presented evidence to the Comey and James grand juries alone, rather than with the line prosecutors who had worked on the cases. She was also the only attorney in the U.S. Attorney’s Office for the Eastern District of Virginia to sign the indictments. After Halligan became that district’s interim U.S. attorney, several prosecutors left the office or were fired.
Since the indictments, lawyers from U.S. Attorneys’ Offices in North Carolina and Missouri have joined Halligan in working on the cases involving Comey and James, respectively.
Attorney General Pam Bondi has used a federal law governing U.S. attorney vacancies to appoint Halligan and several others around the country as the top federal prosecutors in their respective offices. The law limits the term for an interim U.S. attorney to 120 days, after which the district court in that area can either extend that official’s term or appoint a new U.S. attorney to serve until the vacancy is filled.
In the case of the Eastern District of Virginia, Bondi tapped Siebert as interim U.S. attorney in January and, ahead of the 120-day deadline in May, judges of that region voted to keep Siebert in the post. Siebert had also been nominated for the permanent position.
He left the position in September, and though Siebert said he resigned, Mr. Trump wrote on social media, in a Sept. 20 post directed at Bondi, that he had ousted Siebert and praised Halligan as a “really good lawyer.” Halligan was sworn in as interim U.S. attorney days later.
Halligan and the 120-day term for interim U.S. attorneys
At the heart of the argument is the 120-day term for interim U.S. attorneys appointed by the attorney general. Comey’s lawyers said the clock for a temporary U.S. attorney in Virginia has already wound down, and they assert that the law sets a total 120-day time limit that is tied to the attorney general’s initial appointment of an interim U.S. attorney — which would be Bondi’s selection of Siebert in January.
“The period does not start anew once the 120-day period expires or if a substitute interim U.S. Attorney is appointed before the 120-day period expires,” they wrote.
Allowing the attorney general to make back-to-back sequential appointments would effectively allow the president to circumvent Senate confirmation and the district court’s role, Comey’s lawyers wrote in court papers.
Halligan “was defectively appointed to her office as an interim U.S. Attorney,” they said. Arguing that “no properly appointed” official from the executive branch had obtained the indictment against Comey, his lawyers said “the indictment is equally a nullity” and should be dismissed.
James’ attorney, Abbe Lowell, is seeking a court order that would block Halligan from supervising the prosecution of James’ case and from exercising any other duties as interim U.S. attorney.
Halligan, he wrote, “had no authority to litigate this case on behalf of the United States.”
“[B]ecause this indictment would not have been sought or obtained absent Ms. Halligan’s unlawful appointment … the indictment’s flaws cannot be brushed aside as harmless error,” Lowell wrote. “This Court must reject the Executive Branch’s brazen attempt to sidestep the constitutional and statutory limitations on the appointment of U.S. Attorneys.”
The Justice Department’s arguments
The Justice Department responded to the motions from Comey and James by arguing that Mr. Trump and Bondi have the authority to appoint an interim U.S. attorney after a previous interim pick has already served the 120-day maximum.
The department said that even if the judge overseeing the challenges sides with Comey and James, Bondi has retroactively appointed Halligan as special attorney in the Eastern District of Virginia, which would allow her to conduct criminal and civil proceedings in the district.
The Justice Department submitted to the court an order from Bondi, dated Oct. 31, in which she says she is ratifying Halligan’s actions before the grand juries and her signature on indictments returned by the grand jury in both cases, and appoints her special attorney for the Justice Department as of Sept. 22.
“Even were Ms. Halligan’s appointment invalid, the motions to dismiss should be denied,” Justice Department attorneys wrote. “While Defendants challenge Ms. Halligan’s appointment as interim U.S. Attorney, the actions they challenge do not hinge on her validly holding that particular office.” The Justice Department also argued that “any government attorney can present a case to a grand jury or sign an indictment.”
“At minimum, any dismissal should be without prejudice to permit the government to seek new indictments now that the Attorney General has cured any arguable flaw in Ms. Halligan’s authority to prosecute,” the Justice Department continued.
They also argued that each appointment to interim U.S. attorney triggers its own 120-day term.
How courts have ruled so far on legality of other temporary U.S. attorney appointments in Trump’s second term
But the Trump administration has run into issues in other courts that have considered the legality of temporary U.S. attorney appointments during Mr. Trump’s second term. In cases involving Alina Habba, the top federal prosecutor in New Jersey, and Sigal Chattah, Nevada’s acting U.S. attorney, two judges each ruled they are serving unlawfully. A federal judge in California also issued a similar ruling for the acting U.S. attorney in the Central District of California, Bill Essayli.
In the challenge to Habba’s appointment, U.S. District Judge Matthew Brann wrote that under federal law, the attorney general can make appointments of different people to serve as interim U.S. attorneys, “but for an aggregate term of 120 days.”
The Justice Department has appealed the decisions involving Habba and Chattah.
Federal judge from South Carolina to preside over Thursday’s arguments
U.S. District Judge Cameron Currie from South Carolina will preside over Thursday’s arguments. She was brought into the case because all of the federal judges in the Eastern District of Virginia have a conflict of interest in hearing the arguments because of Halligan’s role as head of the prosecutor’s office in the district.
Currie was appointed to the federal bench by President Bill Clinton in 1994.
Earlier this month, Currie said in an order that a transcript she requested from prosecutors from Halligan’s presentation to the grand jury that voted to indict Comey was incomplete, and “fails to include remarks made by the indictment signer both before and after the testimony of the sole witness, which remarks were referenced by the indictment signer during the witness’s testimony.”
After the grand jury indictment was returned, a federal magistrate judge expressed confusion and surprise after she received two versions of the indictment.
A majority of the grand jury that reviewed the Comey matter voted not to charge him with one of the three counts presented by prosecutors, according to a form that was signed by the grand jury’s foreperson and filed in court. He was indicted on two other counts — making false statements to Congress and obstructing a congressional proceeding — after 14 of 23 jurors voted in favor of them, the foreperson told the judge.
But two versions of the indictment were published on the case docket: one with the dropped third count, and one without. The transcript reveals why this occurred.
“So this has never happened before. I’ve been handed two documents that are in the Mr. Comey case that are inconsistent with one another,” the magistrate judge said to Halligan. “There seems to be a discrepancy. They’re both signed by the (grand jury) foreperson.”
From:
Sent:
To:
Subject:
Michael Wolff
12/16/2015 4:26:32 PM
jeffrey E. [jeevacation@gmail.com]
Re: Heads up
Importance: High
I think you should let him hang himself. If he says he hasn’t been on the plane or to the house, then that gives you a valuable PR and political currency. You can hang him in a way that potentially generates a positive benefit for you, or, if it really looks like he could win, you could save him, generating a debt. Of course, it is possible that, when asked, he’ll say Jeffrey is a great guy and has gotten a raw deal and is a victim of political correctness, which is to be outlawed in a Trump regime.
On Tue, Dec 15, 2015 at 11:52 PM, jeffrey E.
if we were able to craft an answer for him, what do you think it should be?
On Tue, Dec 15, 2015 at 8:00 PM, Michael Wolff
wrote:
I hear CNN planning to ask Trump tonight about his relationship with you–either on air or in scrum afterwards.
please note
The information contained in this communication is confidential, may be attorney-client privileged, may constitute inside information, and is intended only for the use of the addressee. It is the property of
JEE
Unauthorized use, disclosure or copying of this communication or any part thereof is strictly prohibited and may be unlawful. If you have received this communication in error, please notify us immediately by return e-mail or by e-mail to jeevacation@gmail.com, and destroy this communication and all copies thereof, including all attachments. copyright -all rights reserved
The aurora borealis lit up the night sky over Monroe, Wis., on Tuesday night. The northern lights were visible as far south as Alabama and Florida
Ross Harried/NurPhoto via Getty Images
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Ross Harried/NurPhoto via Getty Images
Geomagnetic storms brought the northern lights to much of the U.S. on Tuesday night, painting the sky in vibrant hues of green and pink.
The Aurora Borealis was spotted in a large swath of states, including Idaho, Iowa, Missouri, New Mexico, New York, Oklahoma, South Dakota, Tennessee, Texas and Washington state. Northern lights were visible as far south as parts of Florida and Alabama, a relatively rare occurrence that highlights the severity of this week’s storms.
“Well, we had activity tonight — a lot of geomagnetic storm activity,” Shawn Dahl, service coordinator at the National Oceanic and Atmospheric Administration’s (NOAA) Space Weather Prediction Center, said in a video on X.
The aurora borealis glows above rural Monroe County, Wis., as a strong geomagnetic storm from recent solar activity pushes the northern lights unusually far south on Wednesday.
Jeremy Hogan/Getty Images
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Jeremy Hogan/Getty Images
A geomagnetic storm happens when charged particles from the sun’s atmosphere interact with the Earth’s magnetic field. In addition to creating dazzling displays of color, such storms can disrupt technology on Earth, from satellites and GPS to radio communications and the power grid.
Tuesday’s activity was the result of a phenomenon called coronal mass ejections (CMEs), massive blasts of plasma and magnetic field from the sun’s outer atmosphere that grow in size as they hurtle towards Earth.
Two CMEs arrived on Earth on Tuesday, Dahl said.
The aurora borealis lights up the night sky east of Denver on Tuesday.
Trevor Hughes/USA TODAY Network via Reuters
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Trevor Hughes/USA TODAY Network via Reuters
The resulting storm reached G4 levels, the second-highest on NOAA’s five-step scale, and created a magnetic field that was “not only eight times stronger than what’s normal but … also favorable for continued activity,” Dahl said in a later update.
Forecasters are awaiting a third and final CME, which they expect will arrive on Earth at midday Wednesday and be even stronger than the previous two.
“That was the most energetic and strongest of this activity out there in space,” Dahl said. “It was traveling significantly faster than these other two, and we think that’s going to pack even a stronger punch than what we’ve already experienced.”
The Space Weather Prediction Center says the aurora may become visible “over much of the northern half of the country, and maybe as far south as Alabama to northern California.”
The Met Office, the U.K.’s national weather service, says the aurora may also be visible over parts of Britain on Wednesday night, though it is likely to be obscured by cloud cover — as was the case in Michigan on Tuesday.
Luckily, Americans in northern states won’t have to wait long for another chance to get a glimpse.
NOAA’s Space Weather Prediction Center “aurora viewline forecast” shows the swath of the northern U.S. in which the northern lights might be visible on Wednesday.
NOAA’s Space Weather Prediction Center
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NOAA’s Space Weather Prediction Center
How to see (and photograph!) the northern lights
A dark setting is essential to see the aurora, so it’s important to get away from light pollution if you want a good glimpse of the northern lights. It’ll be easiest to see between 10 p.m. and 2 a.m. local time, according to NOAA.
A person watches the northern lights over Hulah Lake in northern Oklahoma on Tuesday.
Andy Dossett/USA TODAY Network via Reuters
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Andy Dossett/USA TODAY Network via Reuters
It is difficult to predict the exact timing and location of the northern lights, but you can sign up for different services that alert you when an aurora may be visible in your area. For example, a citizen science platform called Aurorasaurus allows users to report when and where they see an aurora, and gives estimates on how visible an aurora is in a given area.
Another option is an app called My Aurora Forecast & Alerts, available for download on both iOS and Android devices. This is a location-based app that gives viewing probability and forecasts.
Smartphone cameras are better at capturing the full array of an aurora than our naked eye, so be sure to go out with your phone to view a fuller spectrum of colors. If your phone camera has a night mode option, it’s best to switch it on when photographing the northern lights. You can also switch your phone camera to manual mode and adjust the exposure settings to get the perfect picture.
The aurora brightens the sky over Putnam Lake in Patterson, N.Y., on Tuesday.
Frank Becerra Jr./USA TODAY Network via Reuters
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Frank Becerra Jr./USA TODAY Network via Reuters
Why we are seeing more northern lights
Auroras have been happening more frequently in the United States for a while, and will continue to do so for several months. This influx of shimmering colors comes because the sun is reaching the peak of its 11-year cycle and, therefore, its solar maximum. The solar maximum causes solar eruptions, and this increase of activity brings ions, or electrically charged particles, closer to Earth. This stream of particles is known as the solar wind.
As solar winds get closer to Earth, the charged particles collide with gases in the Earth’s atmosphere. When they collide, light is emitted. The light emits at various wavelengths, creating a colorful display throughout the night sky.
When the sun is at its solar maximum, the number of solar eruptions increases, which is why there are more auroras in the sky. Usually, this activity only takes place near the Arctic Circle, but since solar activity is strong right now, viewing areas have expanded to other regions, like the Midwest.
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