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Writing about antitrust law recently, the excellent Holman Jenkins observed that “At best it’s a criminal waste of talent. At worst, it’s deeply worrisome that any law school graduate aspires to participate in an intellectually corrupt shakedown machine that exists primarily to keep itself employed.” Would it that more would apply Jenkins’s antitrust analysis to TikTok, and in doing so, make an obvious case that the federal government’s “sale or ban” law regarding the social media app was and is unnecessary at best, and theft at worst.

For now, TikTok’s ability to operate stateside hangs in the balance after the Supreme Court upheld the law demanding that TikTok divest from its Chinese owner or face a ban. On its face, what the Supreme Court upholds is misleading. Jenkins surely knows why, and it’s rooted in the fact that the majority of investment in Chinese technology, including the investment in TikTok, was and is American. In other words TikTok, like nearly all Chinese technological companies, already has American ownership.

At which point a forced sale would remove TikTok from the hands of the sophisticated investors who committed capital to a concept that 99.99% of investors wouldn’t or could have, all the while separating it from the technological talent that made it the world’s most popular app in the first place. In sports terms, the “sale or ban” law applied to TikTok is the equivalent of Kansas City Chiefs owner Clark Hunt being told he must sell the Chiefs, but that Patrick Mahomes, Travis Kelce and Andy Reid can’t be part of the deal. No thanks.

A Wall Street Journal editorial indicated that the problem some American conservatives see with TikTok is that it “hoovers up data on U.S. users and their contacts,” and that “Chinese law requires its companies to share data with Communist Party officials on demand.” Left out is the basic truth that free social media sites are free precisely because their owners “hoover up data” on users, including U.S. users. Which means even if TikTok didn’t exist, the Chinese Communist Party (CCP) would have all the data on American users of social media via easy purchases of data broadly available the world over.

It’s yet again a reminder that assuming a forced sale of TikTok, the data hoovered up by TikTok would still be available to the CCP. Meaning the CCP could still in the words of the Supreme Court, ‘”track the locations of Federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage.” Meet the new boss, same as the old boss? Maybe, maybe not.

The uncertainty expressed above is one of many reasons why TikTok’s present owners don’t want to sell: think professional sports once again. Think the Washington Redskins and Commanders under former owner Daniel Snyder, and the Commanders under new owner Josh Harris. Under Snyder the Redskins/Commanders were a laughingstock, while under Harris they’re set to play the Detroit Lions for a spot in the NFC Championship.

Ownership matters, but seemingly not to TikTok critics like former Rep. Mike Gallagher. In a recent Wall Street Journal op-ed Gallagher blithely noted that TikTok’s owners have an easy way around a ban since buyers like Frank McCourt are “waiting in the wings.” Please Google “Frank McCourt,” “Major League Baseball,” and “Los Angeles Dodgers” to see the laughably horrific nature of Gallagher’s assertion. A sale takes place between consenting parties. What conservatives are proposing isn’t a sale, it’s theft.

Except that Gallagher made another assertion that shows conservatives in particular why a sale isn’t just a forced taking that they shouldn’t associate themselves with, but also unnecessary. He wrote that TikTok “is controlled by America’s geopolitical adversary, China.” About what Gallagher believes, color this writer skeptical given the historical track record of governments operating businesses, but assuming TikTok now or in the future is controlled by the CCP, the alleged problem of TikTok “hoovering up data,” blackmailing, corporate espionage, and spreading pro-communist propaganda is solved. Jenkins shows us why.

He’s long disdained antitrust law precisely because a competitive, dynamic economy moves too fast for presently dominant businesses, let alone those controlled by communists as conservatives presently allege about TikTok. In other words, assuming the worst allegations made about TikTok were and are true, the problem of data gathering and propagandizing is solved.

For now, President-elect Trump faces a question about what to do with an unnecssary law that would result in theft if enforced. The Journal editorial contends that if Trump doesn’t enforce the law, then he “isn’t serious about national security.” That reads as overdone. Free people and free markets is the stuff of peace precisely because the free flow of goods and services is the greatest foreign policy concept mankind has ever conceived.

John Tamny is editor of RealClearMarkets, President of the Parkview Institute, a senior fellow at the Market Institute, and a senior economic adviser to Applied Finance Advisors (www.appliedfinance.com). His next book is The Deficit Delusion: Why Everything Left, Right and Supply Side Tell You About the National Debt Is Wrong. 


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