I've long much appreciated Keller's analyses, so I thought I'd pass along this one about today's TikTok decision; I disagree with parts of it, but I think it's quite interesting and insightful:
Given that I considered TikTok's loss a foregone conclusion, this feels like maybe the best possible outcome.
To be clear, I would have liked the TikTok law to be struck down. That's because, assuming (against much evidence) that the goal was to prevent Chinese data collection that threatens national security, Congress chose a *really stupid* way to do that. It could have done so many more effective things. But I didn't expect that logic to prevail. As copyright lawyers learned years ago with Eldred and Golan, the Supreme Court will ignore illogical, captured, biased, or pretextual Congressional reasoning when it feels like it.
The Court rules solely based on the national security threat posed by Chinese data collection (not the algorithmic control issue). Plaintiffs conceded the government's interest in preventing that data collection. That leaves the much more 1st-Amendment-fraught questions about algorithm design unaddressed.
Gorsuch's concurrence addresses a key lurking issue about the government's interest in preventing Chinese manipulation of the algorithm. Can US speakers or companies (like TikTok) choose, as a 1st Am matter, to espouse China's message? Gorsuch says yes. (Screenshots of key passages for this and some other points below are in the Bluesky version of this thread, https://lnkd.in/gq3f2xJE)
