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Onward.

Nasty, brutish, short. A few days back, while skimming comments on one of the more thoughtful “Make America China Again” pitches in favor of our nation’s favorite spy app, it occurred to me the most interesting question surfaced by this increasingly fierce debate over TikTok’s divestiture bill has nothing to do with China. Rather, the unspoken heart of the conversation seems mostly a conflict on the topic of America. Specifically, can our government be trusted to fairly write, read, and enforce the law? And if it can’t be trusted with so basic a function of governance, is it still legitimate?

The question follows implicitly from the most popular argument against the bill. Critics of divestiture generally insist that powers granted Washington for defending Americans from China will be reinterpreted and used against Americans, starting with Elon Musk. To make their case, they not only argue a distorted interpretation of the divestiture bill is inevitable, but legal precedent preventing such a reading no longer matters, and critics of these basic facts are just naive. However this is not so much an argument against any given government policy as it seems to be an argument against the very concept of our government. Would all politicians, from both major parties, so easily lie about their intentions? Would our courts so easily discard centuries of precedent? I mean, maybe. But if our legal system is now so totally unpredictable, and so fundamentally unfair, we have bigger problems than Xi Jinping tracking our locations. What we’re really saying here is our government has betrayed its entire justification for existence, and America no longer exists in any meaningful sense. With stakes so extreme, our choices in consideration of divestiture then seem obvious, but crazy: Trust a standard reading of the bill and ban the spy app, or call for revolution.

Which way, Western man?

It’s been 400 years since Thomas Hobbes introduced the concept of the social contract, which arguably constitutes the first real philosophical defense of modern government. Not to get too in the weeds here, but “Leviathan” was essentially our boy’s pitch for monarchy to a nation of intellectuals flirting with something we might today call “freedom,” which Hobbes interpreted as something more like anarchy. His proposal was simple: a trade of some liberties, in partial subjugation to a powerful authority, in exchange for stability. There would be no “freedom” to rape and pillage in this system, but your dirtbag neighbor couldn’t do it either. With no such contract, Hobbes argued, life would be a “war of all against all.” Then, a little more famously:

“No arts; no letters; no society; and which is worst of all, continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.”

Which… okay, does that not sound at least a little bit like San Francisco? Skepticism of the TikTok bill is being driven by suspicion of our government, and suspicion of our government isn’t happening in a vacuum.

Last week, the nation watched aghast as a woman in New York was arrested for changing the locks on her own home. Apparently, she ran afoul of squatting laws that favor the people who ‘acquired’ her house… by breaking in. Today, hooray for squatting’ laws exist in all 50 states, constituting an almost perfect inversion of justice. But a system of law in apparent conflict with the very purpose of law, as dangerous as it is, is nothing compared to the danger of those who write and enforce our laws selectively ignoring rules they just don’t like.

Following the darkest years of Covid, at which point the government shrugged off nearly six months of rioting, we watched for years as clips of casual, consequence-free looting went viral, and shops around the country closed. In cities like San Francisco, not only is nothing done about technically illegal things like selling fentanyl, it is not even possible to deport illegal immigrants caught dealing. But “Asylum” for murderers is just an echo of the more significant problem of our border itself, which, while not legally abolished, has effectively dissolved. This totally batshit inverted legal culture is the backdrop of our discussion on TikTok’s divestiture today, in which we are expected to trust our government to fairly interpret law. Are we really surprised that many intelligent people are finding that a difficult pill to swallow?

By the numbers, David Sacks is one of the most popular voices in tech, the most influential opponent of the TikTok divestiture bill, and the only critic of divestiture who has even somewhat persuaded me from my original position (roughly: “Mr. President, ban this app”). His argument, most thoughtfully made on the All-In Podcast, focuses on the bill’s definition of a person “controlled by a foreign adversary.” Understanding the definition of this language is critical, as according to the letter of the law any business owner controlled by a foreign adversary, or controlled by a person controlled by a foreign adversary, can be forced to divest from their company.

It’s worth checking out the full text of the bill, but here’s an excerpt addressing the definitions:

(g) Definitions.—In this section:

(1) CONTROLLED BY A FOREIGN ADVERSARY.—The term “controlled by a foreign adversary” means, with respect to a covered company or other entity, that such company or other entity is—

(A) a foreign person that is domiciled in, is headquartered in, has its principal place of business in, or is organized under the laws of a foreign adversary country;

(B) an entity with respect to which a foreign person or combination of foreign persons described in subparagraph (A) directly or indirectly own at least a 20 percent stake; or

(C) a person subject to the direction or control of a foreign person or entity described in subparagraph (A) or (B).

Sacks zeroes in on one specific piece of the bill’s language: “a person subject to the direction or control of.” Elon manufactures Teslas in China. Does that not make him subject to control of the CCP? Presumably, if Elon bothers Xi, Xi can destroy his business, and more than one journalist has already accused Elon of working for China. Of course, given the nature of globalism, an interpretation of the bill in this vein would suggest most big businesses in the country, from other hardware manufacturers like Apple to basically everyone working in Hollywood, would also be vulnerable. Might they all be targeted? Only if they pissed off the wrong administration, which is of course the alarming point: ambiguity breeds despotism. But given precedent, is this reading correct?

I reached out to a few lawyers and friendly D.C. swamp creatures more typically steeped in this kind of legal jargon, and they mostly pointed to traditions in legal interpretation like “the canons of construction” and “whole text canon.” Such conventions dictate no piece of the language in this bill can be read in isolation. Definition (C) above, for example, not only explicitly refers back to (A) and (B), but to the overall point (1). In other words, what we’re most likely looking at here is language designed for mitigation of, for example, a shell corporation’s influence. But damn was I not happy with that phrase “most likely.”

I went into my search expecting a firm “David Sacks’ interpretation is impossible.” What I found instead was the expectation that I trust, to at least some degree, our courts to function in a neutral, predictable manner. But can this trust be justified? As Sacks noted on X, Jack Smith’s pursuit of Trump in the bank-shot fraud case suggests legal precedent has never mattered less. Won’t these people do anything in pursuit of their political enemies? Isn’t this war? And the answer is, of course, yes. Always has been. But how likely is our total loss of the country suggested by a hypothetical forced-divestiture of American companies, run by free Americans, for purposes of maintaining narrative control?

On the narrow question of our government’s push for censorship, much is often made of Twitter before Elon, and that story has become a kind of folktale of real government censorship. Today on X it’s common to encounter people who genuinely believe the state, throughout the Covid years, forced social media platforms to censor. But this simply didn’t happen. Our problem was never that the government forced platforms like Twitter to censor political content, our problem was the people working at platforms like Twitter shared a political perspective with the censorious elements of our government. Yes, Twitter censored, but only because the people who worked at Twitter wanted to censor. This was a monoculture, and — a very small consolation — as bad as our legislature is it is still more ideologically diverse than Twitter’s former HR department.

It’s worth thinking through exactly what it would take to weaponize the TikTok bill against Elon’s X. To abuse the bill so wildly out of step with legal precedent, any would-be anti-Elon despot (it will be Ocasio, let’s be honest) would naturally be challenged in court by X. Then, the attack would almost certainly be contested straight up to the Supreme Court, where it would almost certainly fail. In any case, that process would take forever, and in that time Congress could pass another bill protecting X. Certainly you’d have every Republican on Elon’s side, and probably most of the moderates, as the social media censorship network before Musk obviously censored on behalf of left wing politics only.

“What will Congress do about American social media” is also not entirely an abstract question. Remember, there have been two bills targeting TikTok over the last few years. The first, the RESTRICT Act, died in Congress — largely due to concern over its broadness, with Republicans specifically worried about X. This certainly doesn’t mean the new bill is good, but it does call into question the notion there is anything even close to majority support for targeting an American speech platform in this manner.

Still, is it possible?

Are you kidding? Look around. Yes, a targeting of Musk is obviously possible. There are already psychopaths in Congress who want to go after X, along with every other platform that refuses to censor on behalf of their preferred politics. But, again, the slight blackpill here is just that this is what, to some extent, Washington has always been. The halcyon period of governance we are wistfully recollecting, in which politicians once thoughtfully wrote and then upheld the law for principles beyond reproach? Friend, that never existed. Democracy is, and has always been, war — a deadly game in which the bigger mob wins, and that’s the only rule. But I’m not convinced this is cause to oppose the first bill in years that actually addresses a danger tech itself has signaled, it’s cause for tech to get more involved in politics. Then, I also wonder what is our alternative?

If one truly believes the American government so illegitimate as to have renounced — entirely, as a targeting of Musk’s X would suggest — its commitment to law and order, to a fair and honest legal system, and to the American interest, are we expected to simply oppose the TikTok bill and carry on with our lives? The entire justification for opposition suggests the country has collapsed, and the prescribed course of action is polite debate? Couldn’t be me. But then I’m the naive optimist who thinks the country isn’t yet entirely a despotic third world hell hole.

Still, I’ve been wrong before, and X is certainly the line. So I’ll tell you what, if the government does attempt to seize America’s speech platforms from free Americans, first thing’s first: I promise to apologize.

Then we ride.

-SOLANA