Adi Robertson

Legal writer Eric Goldman pens his expert take on the state of internet law going into the new year, including generative AI, online speech, and Section 230:

TikTok lawyer Noel Francisco comes back for a brief rebuttal, and he’s pushing the court to stay the law even without making a determination about whether TikTok could succeed. This, obviously, would push its enforcement into the domain of President-elect Donald Trump, who has promised to save the app.

Prelogar says the court shouldn’t buy the argument that TikTok hasn’t been given enough time to sell, pointing to Musk’s acquisition of Twitter as a sign of how quickly deals can go through.

In response to Justice Kavanaugh, Prelogar says Congress was clearly and “sincerely” motivated by data privacy concerns, and even if you discount the questions about propaganda and manipulation, that’s enough to make the law stand up. She says TikTok is totally off-base in claiming that motivation is “tainted” if the propaganda-related arguments don’t hold up.

Justice Kagan asks about a Supreme Court ruling that Americans have a right to receive foreign propaganda. “It was focused only on foreign adversary control,” Prelogar says of the TikTok divest-or-ban law. Therefore, she argues, that ruling’s precedent shouldn’t apply. Kagan seems to disagree — saying the concerns about covert content manipulation clearly appear to be about content.

US Solicitor General Elizabeth Prelogar takes on the question of how (hypothetical) TikTok “covert” data manipulation by China poses a uniquely pressing threat, but Justice Kagan seems skeptical. “Everybody now knows that China’s behind it,” notes Kagan — so is any shaping of the algorithm really covert? She points out that you could make a similar argument about manipulation for almost any social network. “You can take any of these algorithms ... none of these are apparent. You get what you get and you think, that’s puzzling!”

Hypothetical Jeff Bezos cannot catch a break. Justice Barrett poses this example, then asks whether Post readers could sue if Congress banned the Post unless he divested, trying to pick apart the different rights of corporations and the American public. (Fisher says it would indeed be an issue for readers.)

Fisher notes that even if TikTok is banned, it gets to keep all the data it harvested, whereas a broader data-focused rule would require it to expunge it. We need a federal data privacy law!

“Congress is fine with the expression. They’re not fine with a foreign adversary ... gathering all this information,” he continues. Some members of Congress do, in fact, seem pretty concerned with the content — they’ve raised pro-Palestinian posts as an issue.

Jeffrey Fisher makes some extremely brief opening statements, then fields a question from Clarence Thomas on what speech is being infringed — the law is “only concerned about ownership,” says Thomas. “The American creators have the right to work with the publisher of their choice,” says Fisher. He raises the hypothetical of users being banned from posting on X, for instance.