Here is what Justices Brett Kavanaugh, Amy Coney Barrett, Kentanji Brown Jackson and Chief Justice John Roberts said about TikTok's Chinese parent company.
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00:00What happens after January 19th, if you lose this case, can you just spell that out?
00:05At least as I understand it, we go dark. Essentially, the platform shuts down.
00:13Unless there's a divestiture.
00:15Unless there's a divestiture, unless President Trump exercises his authority to extend it by
00:20night. But he can't do that on January 19th. On January 19th, we still have President Biden.
00:26And on January 19th, as I understand it, we shut down. It is possible that come January 20th,
00:3221st, 22nd, we might be in a different world. Again, that's one of the reasons why I think
00:37it makes perfect sense to issue a preliminary injunction here and simply buy everybody a
00:44little breathing space. I think Congress and the president were concerned that China was
00:50accessing information about millions of Americans, tens of millions of Americans,
00:55including teenagers, people in their 20s, that they would use that information over time to
01:02develop spies, to turn people, to blackmail people, people who a generation from now will
01:08be working in the FBI or the CIA or in the State Department. Is that not a realistic
01:17assessment by Congress and the president of the risks here?
01:21Well, Your Honor, I'm not disputing the risks. I'm disputing the means that they've chosen. One way,
01:26the most direct way to address that, all of this user data sits on data servers in Virginia,
01:31controlled by Oracle. I'm not talking about the National Security Agreement. What I'm talking
01:35about is a law that simply says to TikTok Incorporated and its US employees, you cannot
01:41share that user data with anybody. You can't give it to ByteDance. You can't give it to China. You
01:46can't give it to Google. You can't give it to Amazon. You cannot give it to anybody under threat
01:52of massive penalties. They never even considered that most obvious alternative. The law doesn't
01:57say TikTok has to shut down. It says ByteDance has to divest. If ByteDance divested TikTok,
02:04we wouldn't be here, right? If ByteDance was willing to let you go and willing to let you
02:09take the source code with you, that would be fine, right? We would not be here. Well, Your Honor,
02:14if ByteDance divested, then the law wouldn't fall on TikTok. But the law will, the law,
02:22not ByteDance. But that's because of ByteDance's choice. The underlying source code, it takes a
02:27team of engineers to update and maintain that. It would take us many years to reconstruct
02:31a brand new team of engineers to do that with respect to the source code. It's not that you
02:36couldn't execute the disentanglement. You could say we're independent. You just can't recreate
02:42TikTok in any kind of way. Well, I think that any new TikTok would be a fundamentally different
02:48platform with different content, which is yet another reason why I think this is a content-based
02:53restriction that falls directly on TikTok incorporated itself in our platform. The
02:58problem I think you're articulating is that you want to use ByteDance's algorithm and therefore
03:04associate with ByteDance. And Congress has prohibited that. We want to use the algorithm
03:10that we think reflects the best mix of content. That's the algorithm that reflects the best mix
03:16of content. What this law says is we can't do that unless ByteDance exercises a qualified divestiture.
03:23But I also think more directly what this law does is it says that TikTok incorporated,
03:28if ByteDance doesn't exercise a qualified divestiture, you have to go mute. You cannot
03:35speak at all. No, I don't think it says that, though. I mean, if TikTok were to post-divestiture
03:42or whatever, pre-divestiture, come up with its own algorithm, right, then when the divestiture
03:48happened, it could still operate. It doesn't say TikTok, you can't speak. I think that's theoretically correct,
03:52Your Honor, but I think that also underscores the content-based nature of the restriction.
03:56No, but the fact that that's true suggests that you're wrong about the statute being
04:02read as saying TikTok, you have to go mute, because TikTok can continue to operate on its own algorithm,
04:09on its own terms, as long as it's not associated with ByteDance. So isn't this really just all
04:16about association? I'm not talking about the content manipulation. I'm talking about the
04:20content harvesting. When you say content harvesting, do you mean people's data?
04:25They've got all the information, whatever algorithms they want, that has access to the personal
04:31information, or at least information that is not readily available, about 170 million Americans.
04:36And whether they're going to use it in 10 or 15 years, when those people grow up and
04:43have different jobs in different places, or whether they're going to use it now, that at least, as I
04:47look at the congressional record, is what Congress was concerned about. And they're not
04:54concerned about the fact that it is available. As I said, the remedy is just somebody else has to run
05:00TikTok.