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Dark Brandon and TikTok

Are the curtains closing on TikTok? The sudden arrival on stage of the TikTok Divest-or-Ban law would seem to indicate so. TikTok’s rivalrous understudies—especially Facebook and Google—wait impatiently in the wings, salivating over the prospect of capturing the company, its users, or, most tantalizing, its advertisers’ dollars.[1] But peek behind the curtain and you might see a highly stylized, kabuki theatre performance orchestrated by none other than Dark Brandon, President Biden’s no-nonsense alter-ego.[2] 

To avoid getting swept off our feet with all the razzle-dazzle, let’s the run the “before they were stars” reel.

  • 2017: TikTok was born when Chinese-based ByteDance bought US-based Musical.ly
  • 2019: TikTok entered into a consent order with Trump’s Federal Trade Commission in connection with certain pre-2017 children’s privacy issues. In this settlement, TikTok agreed to be subject to a permanent injunction from a federal court, as well as future FTC oversight.[3]
  • 2020: Trump’s Committee on Foreign Investment in the United States (CFIUS) recommended a ban, and Trump did that via an executive order. Multiple federal courts banned the bans on a variety of legal grounds, explicitly pointing to the lack of evidence.
  • 2021: Biden revoked Trump’s executive order targeting TikTok and replaced it with a new order directing the Commerce Department to review apps with ties to foreign adversaries like China. Biden’s order emphasized a “rigorous, evidence-based analysis” to evaluate potential risks posed by apps like TikTok.
  • 2022:  TikTok launched Project Texas, the plan to cordon off TikTok’s functions involving access to US user data and content moderation decisions, isolating these from potential Chinese government interference, with extensive oversight and control by the American company Oracle, CFIUS, and additional independent auditors.

And that’s where things stood until the 2022 midterm elections, when Republicans won a slim majority in the House. That led to the 2023 creation of the House Select Committee on the Strategic Competition Between the United States and the Chinese Communist Party, a name definitely not ad-libbed by its chairman, Michael Gallagher (R-WI).[4] He is not a fan of Project Texas, the TikTok plan to resolve concerns about potential Chinese exploitation of Americans via the app (described above). Gallagher had seen this show many times before and knew the lines by heart—at the right moment, grab the spotlight and ban TikTok. Behind the scenes, he drafted a law that would accomplish just that. Or so he thought.

With great fanfare, on March 5, 2024, Gallagher introduced the “Protecting Americans from Foreign Adversary Controlled Applications Act,” braying that “TikTok’s time in the United States is over.”[5]  The bill has a showstopping feature. He put the headliners—TikTok and ByteDance—in big, bright lights.[6]  By explicitly naming them in the law, Gallagher avoided presidential hijinks—the law is self-effectuating, without any need to rely on Biden (given his apparent Project Texas acquiescence). Instead, the law imposes financial penalties on third-party gatekeepers (like Apple and Google app stores) to ensure they drop the platform like an aging starlet when the divest-or-ban deadline arrives. Gallagher’s visionary directorial choice seemed even more inspired when Trump, in a wild plot twist, vocally supported TikTok after the bill was unveiled. Trump’s stated explanation was that such a ban would benefit Facebook. Regardless of rationale, the law closes all loopholes for a president to slow or stop a TikTok ban post-enactment. Under the law, neither President Biden nor a possible President Trump have any mechanism or maneuver to settle or slow that ban. At least, that was the script.

To cut to the climactic moment, Gallagher’s bill was quickly passed by the House, went on ice in the Senate, was reincarnated in must-pass appropriation bill, and signed by the president. And, as expected, promptly challenged in court. But understanding the details of that legislative journey shows why this law will be rejected by the court—without much need to substantively consider the merits of the privacy or national security allegations. This is how Dark Brandon arrived on stage, operating in the shadows instead of the limelight, no doubt delightfully watching Gallagher hoist himself on his own petard with his overly clever and rushed legislating.[7]

Under a suspension of House rules choreographed by Speaker Johnson (R-LA), a procedural gambit usually reserved for uncontroversial bills, the House voted in favor of Gallagher’s bill on March 13, 2024, just eight days after its introduction.[8] During the intervening days, only one House hearing occurred: the House committee responsible for advancing the bill met on March 7—but in secret and under an unusual expedited rule that is rarely invoked. While secret sessions are usually transcribed, and could be made public, there is no mechanism to release them solely to a court considering a constitutional challenge to the law.[9] Two days before the full House vote, the committee introduced into the record a short document that is mostly comprised of citations to unverified news reports.[10] One day prior to the full vote, House members met in an “informal, confidential briefing” with national security officials—these briefings are never transcribed or recorded—and House members had contradictory reactions to the import of the shared information.[11]

After the bill passed the House, it went to the Senate, where astute observers expected it to languish before Senator Cantwell, in charge of the assigned Senatorial casting couch (Commerce Committee). Reading the same cue cards, Johnson and Gallagher plotted next steps. After five weeks, they had their blue script.[12] On April 18, a little over five weeks after the bill arrived in the Senate, Gallagher and Johnson cast it aside. The new “it girl” was the must-pass appropriations bill just received from the Senate, for $95 billion in aid to Ukraine and Israel, a matter near and dear to Democrats, as they well-knew. Gallagher tweaked the bill’s divestment timeline and Johnson attached Gallagher’s revised bill to the appropriations bill; in exchange, Biden and Cantwell made public statements that they would sign the appropriations bill with the TikTok ban.[13]  The full House voted on April 20, with final passage on April 24. Per the statute, TikTok had 165 days to file a legal challenge (October) and 270 days to divest (January).[14]

Continuing the breakneck pace, TikTok filed an earlier-than-expected legal challenge on May 7, asserting violations of First Amendment, Bill of Attainder, and Fifth Amendment.[15] But, like going to the opera, you don’t need to understand the words to understand this play. All you need to know is that TikTok challenged the constitutionality of the law, and the only way the government can overcome those challenges is with sufficient evidence of national security danger.

Ah but there’s the rub. What is the evidence of national security danger? Let’s welcome to the stage with a big round of applause….. Dark Brandon! Following Gallagher-Johnson’s first misstep in explicitly naming TikTok in the law (thus squarely implicating constitutional rights),[16] the duo made a second misstep—a rushed enactment, leaving the record devoid of meaningful evidence with which to justify the law. On that empty stage, Dark Brandon alone decides what evidence (if any) to present.

Deference to Biden’s assessment of TikTok’s danger can hardly be what Gallagher envisioned. After all, avoiding that reliance was the driving impetus for the bill. Take an intermission to consider big-picture what evidence Dark Brandon is likely to submit in the absence of any meaningful House record. One presumes that the Biden administration does not possess robust evidence of national security danger, or this administration would have earlier pursued a ban. Even if such evidence exists, how likely is it that Dark Brandon will present it to the court; wouldn’t that only demonstrate that he failed to protect the public himself via CFIUS?[17]   

This evidentiary misstep is joined with a third error, a flawed set design that Dark Brandon will use as a trap door to make the law disappear. The law has a weird framing for TikTok’s constitutional challenge, requiring the company to file its case in the DC Court of Appeals rather than the standard off-Broadway opening at a federal district court. Perhaps Gallagher perceived district judges as more likely to rule in TikTok’s favor; perhaps he was trying to deprive TikTok of forum selection.[18] Regardless, the statute’s jurisdictional mandate means no procedure exists for conducting discovery or presenting evidence.[19] Instead, the parties (and court) will play it by ear. They plan to submit evidence by attaching exhibits to their briefs, an indication the evidence will be minimal.[20] Moreover, Dark Brandon has indicated that he might not submit anything particularly sensitive, making no plans to litigate pursuant to the Classified Information Procedures Act.[21] He has indicated he might submit evidence under seal and on an ex parte basis—which means no one, not TikTok, not Gallagher, will ever know what that evidence is or whether it was weak.[22] 

And finally, Gallagher’s not-ready-for-prime-time bill has yet-another flaw that Dark Brandon no doubt recognized would increase the likelihood of judicial invalidation. In his histrionic pursuit of TikTok, Gallagher insisted on an extremely short lead-up to the ban. He picked a date out of thin air, with no rhyme or reason. The date arrives so soon, even with the trivially enlarged time in the amended bill, that it is practically impossible for the company to divest. The court will perceive the “divest or ban” law as a pure ban, a staging that favors TikTok. In addition, a fast-approaching date translates into expedited briefing and decision-making.[23] In rushed proceedings, judges favor the status quo. That is particularly true here, where the relevant burdens of proof likely favor TikTok.

One final foreshadowing: Gallagher’s attempt to upstage the president with an eccentric judicial route failed to take into account who gets to call “cut” to end scene. Assuming TikTok prevails in the appellate court, the president alone decides whether to seek review by the Supreme Court.[24]  It is unlikely that either Biden or Trump pursues an appeal to the Supreme Court, given that neither of them desires a TikTok ban on these terms. They will leave the law on the cutting room floor.[25]  Facebook and Google will plot other ways to undermine TikTok’s success.

With deft maneuvering, Dark Brandon used Gallagher-Johnson’s lust for a TikTok ban against them. Without jeopardizing his own China hawk bona fides, he traded nothing (a TikTok ban that will die in court) for something (Ukraine/Israel aid), all the while maintaining strategic flexibility on numerous China topics and the ability to protect Americans from actual harm when and if it arises (via the CFIUS hammer).[26] A standing ovation for Dark Brandon!

Megan Gray is the founder of GrayMatters Law & Policy, a boutique firm focused on Information, Internet, Innovation, and Intangibles. Megan has worked as corporate counsel, litigator, and lobbyist for startups, established companies, non-profit organizations, individuals, and trade associations. 

[1] “How Google, Meta and Snap’s battle with TikTok in short-form video is playing out,” https://digiday.com/marketing/how-google-meta-and-snaps-battle-with-tiktok-in-short-form-video-is-playing-out/. See also https://www.economist.com/business/2024/03/13/will-tiktok-still-exist-in-america (“If Americans redirect the roughly 3 trillion minutes of attention they lavished on TikTok last year to other apps already on their phones, Meta and Alphabet, the dominant duo in online advertising, will be the winners.”).

[2] Dark Brandon is a satirical anti-hero of President Biden that emerged as an internet meme in 2022. It portrays Biden as a powerful, no-nonsense leader who is not to be trifled with. On cue, President Biden joined TikTok on Feb. 12, 2024 with a Dark Brandon meme. On June 3, 2024, Trump also joined TikTok, further underscoring the lack of genuine security concerns with the platform.

[3] As the name indicates, this court order on TikTok’s privacy practices is permanent — it never expires. Interestingly, the Democrat commissioners explained in a concurring statement that they wanted to include TikTok’s officers in the consent order but the Republican commissioners would not agree.

[4] Conveniently for the theme of this essay, his wife is a Broadway actress.

[5] https://selectcommitteeontheccp.house.gov/media/press-releases/gallagher-bipartisan-coalition-introduce-legislation-protect-americans-0

[6] Division H, Section 2(g)(3)(A)(i) and (ii). The headings underscore the statute’s oddity, with the law dependent on the Definitions section to expressly categorize TikTok and ByteDance as “foreign adversary controlled application,” while excluding everything else, leaving that large universe for presidential evaluation similar to standard CFIUS review. Bafflingly, Gallagher did not include a “findings” section in the statute whereby Congress would assert its factual determinations and purposes that justify the law. See https://lawreview.uchicago.edu/print-archive/enacted-legislative-findings-and-purposes. Including Findings is commonplace and Gallagher gave no explanation for their absence. Courts often look to these Findings when assessing the constitutionality of a law, particularly when the connection to Congress’ power is not self-evident.

[7] People outside the DC bubble might wonder why Biden signed the bill if he was not in favor of it. Suffice to say that Biden wouldn’t win the election year Oscar by letting Gallagher-Johnson goad him into defending TikTok. While Biden certainly recognizes the severe harm that an enemy-controlled social network could inflict, he won’t win votes by explaining the constitutional limitations in preventing speculative harm via an information platform. Of note, some tea-leaf readers believe Biden signed the bill after rejecting TikTok’s idea to give the government the conductor’s wand to run the show (or end it, if desired). But rejecting a preposterous idea does not equate to a decision to shut down the platform. Vetting officers and evaluating terrabytes of content — in essence, running TikTok — would require staff and expertise well-outside the government’s ambit, and, more importantly, be cultural and political quicksand. https://www.washingtonpost.com/technology/2024/05/29/tiktok-cfius-proposal-rejected/; https://www.washingtonpost.com/technology/2023/03/07/tiktok-ban-senate-proposal/.

[8] https://www.congress.gov/bill/118th-congress/house-bill/7521/all-actions

[9] It’s unclear if anything significant occurred during the secret session apart from the vote roll call. https://crsreports.congress.gov/product/pdf/R/R42106. See House Rule 11, section 2(g)(1), https://budgetcounsel.com/laws-and-rules/%C2%A7361-house-rule-xi-procedures-of-committees-and-unfinished-business/

[10] The report is 18 pages, but stripping away everything except the purported evidence leaves less than a single page. https://www.congress.gov/congressional-report/118th-congress/house-report/417/1. It’s unclear what role, if any, this “legislative history” will play in the court case. Legislative history refers to the documents produced by Congress during the process of enacting a law. These documents can be used to help determine congressional intent or clarify ambiguous statutory language, but the intent and language in the TikTok ban are clear. The evidence in support of the ban, however, is not. Because the evidence is not part of the legislative history, the court may decline to consider it at all, or give it less weight because it was not directly considered by the legislators voting on the final bill.

[11] https://himes.house.gov/2024/3/himes-statement-on-protecting-americans-from-foreign-adversary-controlled-applications-act

[12] Standard operating procedure for screenwriting is to assign different colored paper to each new revised version of the script. The typical color sequence for script revisions is white (original script), blue revision, pink revisions, etc. https://en.wikipedia.org/wiki/Shooting_script

[13] Notably, Biden issued a press release on the day he signed the bill into law — but he did not mention TikTok at all, only about Ukraine/Israel. https://www.whitehouse.gov/briefing-room/presidential-actions/2024/04/24/bill-signed-h-r-815/; https://www.morningstar.com/news/marketwatch/20240418277/bill-that-could-lead-to-tiktok-ban-gets-potential-new-path-to-becoming-law-soon; https://www.congress.gov/bill/118th-congress/house-bill/815/all-actions

[14] Prior to the divest/ban date, the statute requires TikTok to build a special portability conduit to deliver user data to individual users.

[15] The First Amendment is of course about free speech. The Fifth Amendment is about due process. Under the Fifth Amendment, TikTok also alleged improper taking of private property without compensation. Fewer people are familiar with the constitutional prohibition on bills of attainder. Attainder is a legislative act that declares someone guilty of a crime and punishes them without a trial, imposing punishment on them, such as seizing property. Bills of attainder violate the constitutional principles of separation of powers by allowing the legislature to exercise judicial powers, and due process by punishing without trial (Constitution Article I, Section 9).

[16] Constitutional law nerds will appreciate that, by this devise, TikTok’s challenge is both “as applied” and “facial,” given the peculiar nature of the law, which namechecks TikTok for banning. This provides TikTok with an easier legal standard for review of its constitutional claims.

[17] In the future, if the government obtains sufficient evidence on the national security danger, the government will still have the ability to seek a ban via CFIUS, albeit perhaps on a different component of that authority than what Trump used.

[18] Another possibility is that Gallagher (a non-lawyer) opted for the appellate court as his “second choice” after learning that he couldn’t require TikTok to go straight to the Supreme Court. Congress cannot expand the Court’s original jurisdiction beyond what is stated in the Constitution.  https://en.wikipedia.org/wiki/Original_jurisdiction_of_the_Supreme_Court_of_the_United_States

[19] As the parties noted in a court filing, the law’s designation of the appellate court as the court of original jurisdiction means that neither the Federal Rules of Civil Procedure nor the Rules of Appellate Procedure apply, and there is no underlying judicial or administrative record of evidence. Because they have creative license, the parties could ask for the appointment of a special master to oversee discovery, but neither did so. See https://storage.courtlistener.com/recap/gov.uscourts.cadc.40861/gov.uscourts.cadc.40861.1208624137.0.pdf

[20] The DC Court of Appeals doesn’t have a rule for page limits on exhibits attached to briefs, and no one knows what rules apply here in any event. That said, standard practice in other courts is less than 40 pages. https://www.cadc.uscourts.gov/internet/home.nsf/Content/VL%20-%20RPP%20-%20Circuit%20Rules/%24FILE/RulesFRAP20240401.pdf

[21] Expert Backgrounder: Secret Evidence in Public Trials Protecting defendants and national security under the Classified Information Procedures Act (CIPA), https://www.justsecurity.org/86812/secret-evidence-in-public-trials-protecting-defendants-and-national-security-under-the-classified-information-procedures-act/. Indeed, the government seems to contemplate nothing more than a plain-vanilla protective order for confidential business information to protect business interests. See Joint Motion for Stipulated Protective Order, https://www.courtlistener.com/docket/68506893/01208630251/tiktok-inc-v-merrick-garland/

[22] If the government submits secret evidence, TikTok will presumably double down on its due process violation claim.

[23] Briefing is scheduled to be complete by August 15, with oral argument on September 16.

[24] The wacky pathway that Gallagher imposed for legal challenges to the law raises the prospect that the Supreme Court could be deprived of jurisdiction to hear an appeal even if sought by a party. https://www.reuters.com/legal/transactional/column-no-judge-shopping-tiktok-2024-05-08/  Related, depending on when the appellate court issues its decision, Dark Brandon could also deprive the next president of the ability to seek Supreme Court review. For the Supreme Court to hear a case, a party must file a petition for writ of certiorari within 90 days of entry of the appellate court decision. The 90th day prior to January 20, 2025 (when Trump might be sworn in) is October 22, 2024.

[25] Gallagher’s swan song ends on a bitter note, with no encore — he has resigned from Congress.

[26] Tellingly, the Chinese government seems unperturbed by the new law, even sending new pandas to the DC zoo as part of a positive diplomatic upswing. https://en.wikipedia.org/wiki/Panda_diplomacy and https://www.axios.com/local/washington-dc/2024/05/29/giant-pandas-return-dc-national-zoo.

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