Why Google And Apple (And Others) Have No Choice: They Can’t Restart TikTok, They Can Only Fight

Legal Issues

from the crossroads dept

Even though the Supreme Court somehow didn’t agree, the ban on TikTok remains unconstitutional garbage for all the reasons we’ve discussed: its impact on the platform itself, the impact on its users, and its impact on other service providers that help it work. The corrupt scramble we’ve seen to try to keep it going, ever since it went into effect, only provides more evidence for why it was exactly the sort of law the Constitution should have prohibited.

But in the wake of TikTok v. Garland, here we are, with TikTok still basically shut down — or at least without the partners it needs to work properly. Or protect its users, because as long as it’s not in the app stores users cannot get software updates, thus leaving every phone with it installed extremely vulnerable to unpatched zero day exploits. Which, of course, is yet another reason the “Protecting Americans From Foreign Adversary Controlled Applications Act” was unconstitutionally bad policy that never should have been allowed by anyone (as well as very poorly named).

But the Executive Order Trump just issued to forestall the law’s enforcement doesn’t solve the problem. There is still a law on the books that sanctions TikTok, as well as anyone who helps TikTok provide its services. Trump has no authority to set aside the law. Nor does he have the authority to delay its enforcement – the law articulates a small avenue by which he could, but the criteria that would give him this power has not been met (it would have required TikTok to be much further along with divesting itself).

Instead the Executive Order creates new problems. Because here is Trump trying to claim an unprecedented amount of raw power to decide whether or not to enforce the law. But that lawlessness he’s demonstrating can offer no protection from law. It can offer no protection from anything. And Google and Apple and any of the other providers TikTok needs would be fools to pretend otherwise.

Just run the math: Trump wants these companies to be in his debt. From at least some, like Google, he’s already extracted at least a million dollars in tithes “for his inauguration.” But there’s nothing to limit him from continuing to extract millions more. Meanwhile, if any of these companies serve TikTok they will be staring down a sanction of potentially more than 500 billion dollars (the penalty, especially for the app stores, is $5000 per TikTok user, and even for the other providers it’s still $500 per user). So if the way to avoid that penalty is to depend on Trump’s arbitrary benevolence, Trump could extract up to $499,999,999,999 from each of them, and that’s just to maybe avoid them getting in trouble for violating this law. Stay tuned for what other laws get put on the books next, especially now that the constitutional limits on them have been so relaxed.

At that point it would have long been more cost effective to just help elect Democrats and pay taxes like a normal company hoping to profit from Americans’ business.

Trump’s promise not to enforce is also as void as it is arbitrary and autocratic. As it is, the text of the executive order, at Section 3(c), instructs that no one should rely on it:

This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

It may be boilerplate that shows up in a lot of executive orders, but it’s still sitting there, in this one, having effect.

As a result the only choice these companies have is not whether to serve TikTok again or not; that choice got made for them by the stupid law, which decided for them that they cannot. Their only choice is whether to silently obey the law, or to fight it.

This law is jawboning and affects its own interests in a way that even Trump himself has recognized is unconstitutional. As has the Supreme Court. Furthermore, the extraordinary, distorting penalties also present their own constitutional concerns, which is an issue the courts have yet to address in this context.

In the face of this unconstitutionality the companies should have fought already, but with this actual injury to the companies now so proximate and likely, they probably still can, or at least plausibly try. And they should. Not only would doing so be in their own immediate legal interests, but their business ones as well. Because as long as the public sees these big tech companies as being in Trump’s pocket, no one will trust them again. But government contracts aside, their businesses still depend on that public trust, whether by customers, investors, or other regulators still able to sink their own teeth into them. It’s time to earn that trust by saying no to any of these abuses of power, for their sake and everyone’s.

Filed Under: donald trump, executive order, intermediaries, liability
Companies: apple, bytedance, google, tiktok