There are many reasons to be concerned about freedom of expression in America these days. But one of them, and perhaps the most insidious, is going under the radar. I am talking about the framework agreement under which TikTok’s US application would be “operated” and substantially controlled by a US entity.
Buried in the details of the TikTok agreement is a new control over digital media content that no one is noticing. It blasts through the parameters set by the U.S. Supreme Court’s decision dismissing constitutional challenges to the Protecting Americans from Foreign Adversary Applications Act (PAFACAA). It sets a precedent that is likely to have long-term impact on freedom of expression in the digital environment. And it is a form of control that, perhaps not accidentally, promises to be more subject to influence by a foreign government than the original TikTok ever was.
The New Deal for TikTok
President Trump’s Executive Order, published here, officially deems the settlement between the U.S. government, investors, ByteDance and the Chinese government a “qualified divestiture.” This means it is legal under PAFACAA, once it gets fully worked out. Based on what we know now, the deal could have been worse: TikTok is not banned, its board does not have a U.S. government golden share or board seat, and ByteDance’s algorithm has been “licensed,” not expropriated.
Look into the details of the TikTok settlement, however, and one finds Section 2(b)(iii) A:
[T]he divestiture includes intense monitoring of software updates, algorithms, and data flows by the United States’ trusted security partners, and it requires all recommendation models, including algorithms, that use United States user data to be retrained and monitored by those trusted security partners.
So TikTok US will be a new app, and its content recommendations will be retrained and monitored by Oracle. With this move, U.S. government declares that it has a national security interest in platform content recommendations and software updates, and that parties it deems “trusted” have the power to control the algorithms which control content feeds.
This is an astounding assertion of government control over digital expression. It imposes a government-mandated gatekeeper on a social media app’s content. And it ignores constitutional law. The U.S. Supreme Court decision that affirmed the constitutionality of PAFACAA explicitly told the government that TikTok could not be banned or divested solely based on the alleged threat of foreign influence operations. We quote here the relevant passage from Justice Gorsuch’s concurring opinion:
…the Court rightly refrains from endorsing the government’s asserted interest in preventing “the covert manipulation of content” as a justification for the law before us. One man’s “covert content manipulation” is another’s “editorial discretion.” Journalists, publishers, and speakers of all kinds routinely make less-than-transparent judgments about what stories to tell and how to tell them. Without question, the First Amendment has much to say about the right to make those choices. It makes no difference that Americans (like TikTok Inc. and many of its users) may wish to make decisions about what they say in concert with a foreign adversary. “Those who won our independence” knew the vital importance of the “freedom to think as you will and to speak as you think,” as well as the dangers that come with repressing the free flow of ideas.
The court’s decision said that the only legitimate reason for the PAFACAA law is that it would prevent the possible transfer of user data to the Chinese government. As we wrote in our analysis of the decision, “The court’s argument that the law was “content neutral and …justified by a content-neutral rationale” could only be upheld by concluding that the law’s only goal was to prevent China’s government from collecting data about American users.”
And yet here we are; the Trump settlement directly authorizes the new owners of TikTok to intervene heavily in the app’s content management in ways that can only be intended to prevent “covert manipulation of content” by the Chinese. Protection of user data does not require those measures.
What recourse do US citizens have when a law’s constitutionality is in question, the Supreme Court recognizes those concerns and limits the law’s scope to address them, and then the actual implementation of the law ignores those limits?
Foreign influence
The “trusted security partner” named in the White House’s description of the deal is Oracle’s Larry Ellison. And here is the great irony. By giving the New TikTok the power to prevent covert content manipulation by China, the settlement unavoidably gives the new owners the power to engage in their own covert content manipulation, by “training” the algorithm. And when we look at who is involved in this deal, we can only conclude that that power will likely be wielded, directly or indirectly, in the service of a foreign government. Israel may be seen as an ally, not an adversary, but there is a longstanding debate in this country about the degree to which U.S. foreign policy has been steered to work more in Israel’s interests than America’s.
Oracle’s owner, Larry Ellison, is an avowed Zionist who has provided tens of millions of dollars in financial support for the state of Israel and its military. He is a personal friend of Benjamin Netanyahu and has extensive partnerships and contracts with the Israeli government and military. This becomes relevant because anti-Israel and pro-Palestinian content on TikTok was a significant, acknowledged, and decisive factor in galvanizing support and momentum for the PAFACAA law. A key proponent and drafter of the law, former Rep. Mike Gallagher, confirmed this openly. Earlier legislative efforts were “dead until October 7th,” he said, when an influx of what he and others perceived as “antisemitic content” and pro-Palestinian/anti-Israel narratives on the platform “gave the bill legs again.” It is not unreasonable to see the law banning TikTok as an attempt to suppress speech opposing Israel as much as protection against a hypothetical Chinese threat.
Ellison and his son, David, recently acquired Paramount Global, which owns the CBS broadcasting network. The U.S. government had to approve the acquisition, and the Trump administration has in several cases shown that it will condition approvals on political considerations, such as paying $16 million to settle a Trump lawsuit. The Paramount acquisition led to the sudden cancellation of the Stephen Colbert show, which not only routinely carried biting criticism of Trump but also of Israel’s actions in the Gaza war. The ownership change also led to intimations that Paramount would buy The Free Press, the media company of Bari Weiss. As part of that acquisition, Bari Weiss is expected to be put in a senior leadership role at CBS News. Weiss has acknowledged her “fiercely Zionist upbringing” and refers to herself as a “Zionist warrior.”
We support the right of Zionists and all other positions related to Israel to run their own media outlets and promote their own causes. The problem here is that U.S. government interventions in major public media, including the TikTok sale, are tilted to enhance the power of rightwing Israeli nationalism and suppress its critics.
“Foreign influence” through social media ownership was one of the key motivations for many advocates of the TikTok ban. It is disturbing that the Supreme Court rejected that rationale, yet the implementation of the law proceeds as if it had not; worse yet, the deal seems to be reinforcing a foreign government’s influence
As usual Milton. You nailed it. But no deal that this administration has put together has been more than just about greed and money and control. So it isn’t limited to the TikTok deal.
This recorded comment by Netanyahu openly says that the TikTok purchase in an important “weapon” for Israel. https://x.com/DropSiteNews/status/1971741657834934453