⏩ Is it legal for Donald Trump to ban TikTok?

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This week: The President thinks he can just ban TikTok, and Big Tech may be facing a new legal reality. Plus, why Covid-induced changes could stick longer in the legal world than Great Recession changes.

🤔 Donald Trump might actually have the legal power to ban TikTok

TikTok has been one of the hottest social media companies in the world. While Twitter and Facebook get dragged by Congress and the general public seemingly every day, TikTok had 315 million downloads in Q1 this year, the most for any app ever.

But now Donald Trump wants to ban TikTok in the U.S. if an American company doesn’t swoop in to purchase it. Uh, is that allowed?

  • TikTok is owned by the Chinese company Byte Dance: Despite having an American CEO and a sizable American staff, White House officials have feared the Chinese government would use TikTok for retaining American data and for facial recognition.  

  • Trump is not the only one wary of the app: Kara Swisher, one of the most respected media figures in tech, said last month she wouldn’t download the app out of concern the Chinese government would use it for security and surveillance. Major corporations, like Wells Fargo, have banned employees from having TikTok on company phones.   

The American version of the Great Firewall of China? 

China and many other countries block specific apps by forcing Internet Service Providers to bar the sharing of their content on their servers. India has already done exactly that for its TikTok ban. But the United States has no precedent for taking similar action. 

  • To ban TikTok, then, the U.S. would likely follow a strategy it used with the 5G company Huawei, according to The Verge. This would entail the Commerce Department adding TikTok to what is essentially a blacklist crafted at the discretion of the White House. Companies who want to interact with the companies on that list, called the “entity list,” can be sanctioned by the U.S. government. So if TikTok was on the list Google and Apple would think twice before putting the app in its stores.

The Verdict

Companies typically get added to the “entity list” under extreme circumstances. As James Lewis, director of technology policy at the Center for Strategic and International Studies, told The Verge, the addition of TikTok would be legally questionable at this point. “You can’t just do it because you’re mad at a company.”

Meanwhile, Trump’s deadline for the sale is Sept. 15.

🕴️Breaking down the Big Tech antitrust hearing 

Amazon’s Jeff Bezos, Facebook’s Mark Zuckerberg, Apple’s Tim Cook and Google’s Sundar Pichai went in front of Congress last week, remotely. Here are four quick takes for understanding what happened and what could happen in the future. 

  1. The focus was on anticompetitive behavior and bias: Most Democratic lawmakers questioned Google’s practices for steering search traffic to its own products and whether Facebook strong-armed Instagram into a sale. Republicans focused on the companies’ ties with China and concerns about bias against conservative views.  

  2. Apple got off easy: Cook had to answer just 29 questions. For Bezos, the number was 59 and Pichai 61. Zuckerberg, who has been slammed by Congress before, answered 62 questions. Zuck was considered by Recode to be one of the biggest “losers” from the hearing, having to deal with questions about antitrust and an inability to stop hate speech.

  3. The November election could be a turning point: The Democrats have been more serious about overhauling antitrust laws. Election victories in the House, Senate and White House could put more heat on Amazon, Facebook, Google and Apple.

  4. Bipartisanship would be required: For major legal changes to regulatory laws regarding the biggest tech companies, Republicans would have to be involved, too. Slate noted that last week’s hearing seemed like the first time the two political parties had been relatively cohesive in a long time.

🎗️ Why Covid-induced legal changes are expected to stick 

After the financial crisis in 2008, many prognosticators suggested the legal industry was due for a shakeup. But the shift wasn’t seismic, aside from a few lean hiring years at big firms and a temporary downswing in business. 

During this new time of crisis, the ABA Journal has surveyed legal experts yet again. And this time they think more significant changes will endure. 

  • The Great Recession led to financial turmoil: But it didn’t force companies, firms or judges to change their daily habits. Coronavirus has upended all of society, preventing many of the face-to-face meetings previously considered necessary.  

  • Technology was forced upon the legal world: Client meetings, depositions and meetings have all gone online. Chief Justice of the Texas Supreme Court Nathan Hecht said it would’ve taken years for courts to adopt such practices under regular circumstances. 

The biggest changes could be regulatory

As we discussed earlier this summer, nonlawyer ownership of legal providers could become a reality. Experts now believe the movement toward this change will be expedited by Covid. Why? Because legal services are expected to rise so greatly in the ensuing months and years that regulatory change will be required to create greater access to justice.   

The Verdict 

Jennifer Leonard, Penn Law’s chief innovation officer, said the legal field has never gone through anything like it has in the last few months. She described it as a disruption of “every single component of the legal system.” 

And when disruptions are that wide scale -- and mandatory -- they’re more likely to last. 

What else we’re forwarding 

When you have to retake the LSAT and it’s not even your fault: LSAC lost approximately 140 take-home exams this year. That’s about 1% of total take-home exams administered. Those unlucky people will have to retake the test. Here’s hoping none of them notched a 170-plus. 

ABA president calls on lawyers to recognize their responsibility to fight injustice: Judy Perry Martinez said no lawyer should ever say “the problems of racism run too deep.” She added, “This is our torch to carry.”

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Thanks for reading along.

🧐 Raad