The TikTok Letters
A groundhog day of expanding executive power that is somehow also a dereliction of executive duty.
I was setting this new Substack tonight and I was not planning writing anything, especially work related.1 But after I left work for the holiday weekend, news broke that the Department of Justice had in response to a FOIA lawsuit filed by Tony Tan finally released the letters from the Attorney General to tech companies promising them non-enforcement of the TikTok Ban based on the President’s illegal January 20th executive order. I have been calling for the release of these letters for months and now you can see for yourself below what a get out of jail card looks like on DOJ letterhead signed by the Attorney General herself. Alan Rozenshtein, who has been on the TikTok non-enforcement is insane AND illegal beat since Day 1, writes the letters claims “are astonishing in their breadth and implications for executive power.”
I have spent the last few months slightly obsessed with what was happening with the TikTok ban.2 Not because I was some big supporter of the TikTok ban, at best I would describe myself as indifferent, both because I saw the merits of the free speech/First Amendment arguments but also the hypothetical national security concerns (which the government never bothered to publicly prove). But also because I was spending way too much time on TikTok and honestly thought the government banning it was easier than me having any sort of self-control against that insane algorithm.3
But I could not get over the fact that the President was using an Executive Order without any real authorities to just…suspend a law that Congress had passed in an overwhelming bipartisan manner and the Supreme Court upheld. I am not a lawyer so I struggle to properly describe the EO and what is happening, is it illegal (sure), unprecedented (definitely), and not really allowed by the law (it is currently happening unimpeded).
In the grand scheme of the chaos of the beginning of the second Trump administration, from DOGE to RFK Jr., and because a lot of people on all sides on the aisle didn’t really want TikTok to be banned, it kind of just passed by as another one of those crazy illegal power seizing things they were doing.
But I had read the TikTok Ban, or more properly the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA), a bunch of times and honestly it was a pretty tightly written law to achieve its goal of banning TikTok.4 The authors pretty smartly enforced the ban not against TikTok but against the app stores and cloud hosting services and threaten them with truly crippling fines (a reasonable estimate in fines was $1.7 TRILLION just between the app stores run by Apple, Google, and Oracle which is TikTok’s sole US cloud host). That is an insane amount of money even for those Big Tech companies to risk for an app they don’t even own! I thought the app store companies were kind of laudable for complying with the law until news broken on February 13 when news broke that Apple and Google were returning TikTok to the app stores after “Attorney General Pam Bondi sent a letter to [Apple] assuring it will not face fines for violating a law that banned the video-sharing platform last month.”
It kind of broke my brain that the companies were willing to take that much risk, though there were some obvious reasons why they would (antitrust trials and it was just days after DOJ ordered the Eric Adams case dropped) and I wrote about it in Tech Policy Press in February.
Then the TikTok ban just kind of…kept going. And then it got extended once. And I wrote about the dangers to public companies in complying with the TikTok ban and the question if they needed to disclose breaking the law when the President asked them and the AG gave them a secret letter saying it was fine. And then after I published Matt Schettenhelm from Bloomberg Intelligence pointed out Akamai HAD made such a disclosure in their Febuary SEC filing and it is a wild fucking disclosure.5 And then the TikTok ban delay got extended again.
I had written in April that the letters from the AG really should be released so investors, and the public, could judge their legal soundness and the risk to the companies breaking the law.
Luckily there was someone else who had similar questions and the wherewithal to go and fill two lawsuits to do something about. Tony Tan filed a shareholder lawsuit in June against Google on ignoring the ban and trying to get the AG letter in Delaware and then a FOIA request that became a lawsuit (I believe at least one news org also had a FOIA lawsuit on this). The TikTok letters were released by DOJ in response to the FOIA request/lawsuit. (Full disclosure: Tony emailed me after he read my piece and we chatted on the phone and have emailed).
And now the letters are public. But why now?
One answer may be found in Tony Tan’s other lawsuit. Professor Jack Goldsmith noted that on July 1, Alphabet had to file a response to the Delaware lawsuit, which didn’t get much attention but was the first time Alphabet/Google officially admitted to hosting TikTok on the PlayStore (obvious) and to receiving a letter (Professor Goldsmith’s post on Trump’s illegal refusal to enforce the TikTok is worth the read).
For much of the last few months it was a beneficial position for these companies to have these letters be secret but if they were going to eventually come out, they might as well control how they come out.
But it seems plausible Alphabet/Google knew these legal filings would be public in July and since the TikTok ban is going to be extended forever, they’re public companies, that for any number of reasons these letters would eventually become public. And so maybe they let DOJ know they wouldn’t be upset if these eventually became public, say sometime around their public filings in the case.
And so on the afternoon before a three day holiday weekend, the oldest DC tradition of “Take Out the Trash Day” of burying bad news before a holiday weekend was executed, with DOJ releasing the TikTok letters that afternoon.
And folks the TikTok letters, they are bad.
There’s the part a lot of us have been saying that these are huge fines to risk on a secret piece of paper, and now that it’s not secret, a lot of investors may really be pissed as Nilay Patel of the Verge noted (hello to the lawyers working overtime this weekend to file a securities fraud case by Monday).
But way more important is the sweeping justification used by the Department of Justice, you know the entity that is supposed to be the government’s neutral enforcer of laws in this country, to justify the non-enforcement of the law. It is worth reading in its entirety.
Article II of the United States Constitution vests in the President the responsibility over national security and the conduct of foreign policy. The President has determined that an abrupt shutdown of the TikTok platform would interfere with the execution of the President’s constitutional duties to take care of the national security and foreign affairs of the United States. See Executive Order.¹ The Acting Attorney General has concluded that the Protecting Americans from Foreign Adversary Controlled Applications Act (the “Act”) is properly read not to infringe upon such core Presidential national security and foreign affairs powers.
Jack Goldsmith describes the TikTok letters as “an astounding assertion of executive power—maybe the broadest I have ever seen any president or Justice Department make, ever, in any context—and that is saying something.”
Alan Rozenshtein says “But the primary, and more constitutionally audacious, argument advanced in the letters is a claim of sweeping Article II power…This interpretation effectively creates a foreign-affairs exception to the President’s duty to ‘take Care that the Laws be faithfully executed.’”
These shocking letters of non-enforcement are among the many steps this administration is taking to legalize lawlessness, they may be a template for justifying ignoring others laws in the future, or not prosecuting companies for violations. They can be added to the FCPA non-enforcement and his historic pardoning of a corporation for the first time to their toolkit for corruption.
As I have noted before, I am not a lawyer, and I will leave the deep analysis to others. But you don’t have to be a Constitutional scholar to read the letters and realize this issue isn’t really about TikTok. It is about the rule of law and how Donald Trump made some of his greatest illegal power grabs on day one with few people realizing it. Now that these letters are public,6 maybe people will begin to understand that the Trump Administration’s justifications for indefinitely delaying the TikTok ban are a groundhog day of expanding executive power that is somehow also a dereliction of executive duty.
A special thanks to Alan Rozenshtein, Tony Tan, and Jack Goldsmith for being some of the only people seriously focused on this issue, letting it bother them, and treating it with the seriousness we now see it clearly deserved.
See the obligatory and half-hearted disclaimer that opinions are my own somewhere on this site as if that matters in today’s information environment.
Got mentioned by Matt Levine in Money Stuff twice which was honestly a career highlight.
I have since downloaded the app Clearspace which blocks apps unless you do stuff like pushups to bank minutes to use social media apps and it really has worked to cut down my social media consumption. This is because even though I can do pushups, and now I can do more than I used to be able to, sometimes I am too lazy to get up and do it or I’m just out of minutes. Highly recommend, there’s a Michael Easter post where he recommends it.
In looking up stuff for this I found an interview with my friend Kate Klonick in Tech Policy Press where apparently I had been saying this for a while:
Kate Klonick: “I think it was Adam Conner, the vice president for technology policy at CAP, the Center for American Progress, who said, actually, folks, this is exactly how laws are supposed to be written, which is to be tailored in the specific way with real reasons for implementation. And unfortunately for us, they did an okay job writing this and making the case for it on the floor of Congress and the Senate. I mean, it's true. This is not a terribly written law. It was never a terribly written law. It was just a terrible idea of a law at its core and the effects were going to be terrible for Americans and the freedom of expression, and that's still what I believe.”
The full text from Akamai’s February 24, 2025, Form 10-K disclosure:
In addition, in April 2024, the U.S. government passed legislation that prohibited the provision of certain types of services to a Chinese application if the application was not sold to a neutral third party by January 19, 2025. The Chinese application was not sold to a neutral third party by the January 19th deadline, but President Trump subsequently signed an executive order instructing the U.S. Attorney General to not take any action to enforce the passed legislation for a period of 75 days from January 20, 2025. The Attorney General has since determined that our provision of services to this customer has not violated the law and that we can continue providing services as contemplated by the Executive Order without violating the law and without incurring any legal liability. It is difficult to predict whether the passed legislation will ultimately be enforced and whether any future judicial challenges brought against the executive order will be successful. Even though President Trump has extended the enforcement deadline for a ban on the Chinese application, there is no assurance that we will not be exposed to liability and we may be exposed to significant fines, litigation, indemnification claims, negative publicity, reputational harm, diversion of management attention, interruptions in our operations, financial loss and other similar harms by continuing to provide services to the Chinese application.
Shout out to Tony Tan and all the FOIA warriors out there!