Several members of Congress— Senator Edward J. Markey (D-Mass.), Senator Rand Paul (R-Ky.), and Representative Ro Khanna (D-Calif.)—filed a brief agreeing that “the TikTok ban does not survive First Amendment scrutiny.” They agreed with TikTok that the law is “illegitimate.”
Lawmakers’ “principle justification” for the ban—”preventing covert content manipulation by the Chinese government”—masked a “desire” to control TikTok content, they said. Further, it could be achieved by a less-restrictive alternative, they said, a stance which TikTok has long argued for.
Attorney General Merrick Garland defended the Act, though, urging SCOTUS to remain laser-focused on the question of whether a forced sale of TikTok that would seemingly allow the app to continue operating without impacting American free speech violates the First Amendment. If the court agrees that the law survives strict scrutiny, TikTok could still be facing an abrupt shutdown in January.
The Supreme Court has scheduled oral arguments to begin on January 10. TikTok and content creators who separately sued to block the law have asked for their arguments to be divided, so that the court can separately weigh “different perspectives” when deciding how to approach the First Amendment question.
In its own brief, TikTok has asked SCOTUS to strike the portions of the law singling out TikTok or “at the very least” explain to Congress that “it needed to do far better work either tailoring the Act’s restrictions or justifying why the only viable remedy was to prohibit Petitioners from operating TikTok.”
But that may not be necessary if Trump prevails. Trump told the court that TikTok was an important platform for his presidential campaign and that he should be the one to make the call on whether TikTok should remain in the US—not the Supreme Court.
“As the incoming Chief Executive, President Trump has a particularly powerful interest in and responsibility for those national-security and foreign-policy questions, and he is the right constitutional actor to resolve the dispute through political means,” Trump’s brief said.
While the controversial US law doesn’t necessarily ban TikTok, it does seem designed to make TikTok “go away,” Greene said, and such a move to interfere with a widely used communications platform seems “unprecedented.”
“The TikTok ban itself and the DC Circuit’s approval of it should be of great concern even to those who find TikTok undesirable or scary,” Greene said in a statement. “Shutting down communications platforms or forcing their reorganization based on concerns of foreign propaganda and anti-national manipulation is an eminently anti-democratic tactic, one that the US has previously condemned globally.”
Greene further warned that the US “cutting off a tool used by 170 million Americans to receive information and communicate with the world, without proving with evidence that the tools are presently seriously harmful” would “greatly” lower “well-established standards for restricting freedom of speech in the US.”
TikTok partly appears to be hoping that President-elect Donald Trump will disrupt enforcement of the law, but Greene said it remains unclear if Trump’s plan to “save TikTok” might just be a plan to support a sale to a US buyer. At least one former Trump ally, Steven Mnuchin, has reportedly expressed interest in buying the app.
For TikTok, putting pressure on Trump will likely be the next step, “if the Supreme Court ever says, ‘we agree the law is valid,'” Greene suggested.
“Then that’s it,” Greene said. “There’s no other legal recourse. You only have political recourses.”
Like other civil rights groups, the EFF plans to remain on TikTok’s side as the SCOTUS battle starts.
“We are pleased that the Supreme Court will take the case and will urge the justices to apply the appropriately demanding First Amendment scrutiny,” Greene said.
TikTok: Ban is slippery slope to broad US censorship
According to TikTok, the government’s defense of the ban to prevent China from wielding a “covert” influence over Americans is a farce invented by lawyers to cover up the true mission of censorship. If the lower court’s verdict stands, TikTok alleged, “then Congress will have free rein to ban any American from speaking simply by identifying some risk that the speech is influenced by a foreign entity.”
TikTok doesn’t want to post big disclaimers on the app warning of “covert” influence, claiming that the government relied on “secret evidence” to prove this influence occurs on TikTok. But if the Supreme Court agrees that the government needed to show more than “bare factual assertions” to back national security claims the lower court said justified any potential speech restrictions, then the court will also likely agree to reverse the lower court’s decision, TikTok suggested.
It will become much clearer by January 6 whether the January 19 ban will take effect, at which point TikTok would shut down, booting all US users from the app. TikTok urged the Supreme Court to agree it is in the public interest to delay the ban and review the constitutional claims to prevent any “extreme” harms to both TikTok and US users who depend on the app for news, community, and income.
If SCOTUS doesn’t intervene, TikTok said that the lower court’s “flawed legal rationales would open the door to upholding content-based speech bans in contexts far different than this one.”
“Fearmongering about national security cannot obscure the threat that the Act itself poses to all Americans,” TikTok alleged, while suggesting that even Congress would agree that a “modest delay” in enforcing the law wouldn’t pose any immediate risk to US national security. Congress is also aware that a sale would not be technically, commercially, or legally possible in the timeframe provided, TikTok said. A temporary injunction would prevent irreparable harms, TikTok said, including the irreparable harm courts have long held is caused by restricting speech of Americans for any amount of time.
“An interim injunction is also appropriate because it will give the incoming Administration time to determine its position, as the President-elect and his advisors have voiced support for saving TikTok,” TikTok argued.
Ars could not immediately reach TikTok for comment.
The US is prepared to fight the injunction. In a letter, the US Justice Department argued that the court has already “definitively rejected petitioners’ constitutional claims” and no further briefing should be needed before rejecting the injunction.
If the court denies the injunction, TikTok plans to immediately ask SCOTUS for an injunction next. That’s part of the reason why TikTok wants the lower court to grant the injunction—out of respect for the higher court.
“Unless this Court grants interim relief, the Supreme Court will be forced to resolve an emergency injunction application on this weighty constitutional question in mere weeks (and over the holidays, no less),” TikTok argued.
The DOJ, however, argued that’s precisely why the court should quickly deny the injunction.
“An expedient decision by this Court denying petitioners’ motions, without awaiting the government’s response, would be appropriate to maximize the time available for the Supreme Court’s consideration of petitioners’ submissions,” the DOJ’s letter said.
TikTok has requested a decision on the injunction by December 16, and the government has agreed to file its response by Wednesday.
This is perhaps the most dire fight of TikTok’s life. The social media company has warned that not only would a US ban impact US TikTok users, but also “tens of millions” of users globally whose service could be interrupted if TikTok has to cut off US users. And once TikTok loses those users, there’s no telling if they’ll ever come back, even if TikTok wins a dragged-out court battle.
For TikTok users, an injunction granted at this stage would offer a glimmer of hope that TikTok may survive as a preferred platform for free speech and irreplaceable source of income. But for TikTok, the injunction would likely be a stepping stone, as the fastest path to securing its future increasingly seems to be appealing to Trump.
“It would not be in the interest of anyone—not the parties, the public, or the courts—to have emergency Supreme Court litigation over the Act’s constitutionality, only for the new Administration to halt its enforcement mere days or weeks later,” TikTok argued. “This Court should avoid that burdensome spectacle by granting an injunction that would allow Petitioners to seek further orderly review only if necessary.”
“What the Act targets is the PRC’s ability to manipulate that content covertly,” the ruling said. “Understood in that way, the Government’s justification is wholly consonant with the First Amendment.”
TikTok likely to appeal to Supreme Court
TikTok is unsurprisingly frustrated by the ruling. In a statement provided to Ars, TikTok spokesperson Michael Hughes confirmed that TikTok intended to appeal the case to the Supreme Court.
“The Supreme Court has an established historical record of protecting Americans’ right to free speech, and we expect they will do just that on this important constitutional issue,” Hughes said.
Throughout the litigation, ByteDance had emphasized that divesting TikTok in the time that the law required was not possible. But the court disagreed that ByteDance being unable to spin off TikTok by January turned the US law into a de facto TikTok ban. Instead, the court suggested that TikTok could temporarily become unavailable until it’s sold off, only facing a ban if ByteDance dragged its feet or resisted divestiture.
There’s no indication yet that ByteDance would ever be willing to part with its most popular product. And if there’s no sale and SCOTUS declines the case, that would likely mean that TikTok would not be available in the US, as providing access to TikTok would risk heavy fines. Hughes warned that millions of TikTokers will be silenced next year if the appeals court ruling stands.
“Unfortunately, the TikTok ban was conceived and pushed through based upon inaccurate, flawed and hypothetical information, resulting in outright censorship of the American people,” Hughes said. “The TikTok ban, unless stopped, will silence the voices of over 170 million Americans here in the US and around the world on January 19th, 2025.”
One year ago, I didn’t know how to bake bread. I just knew how to follow a recipe.
If everything went perfectly, I could turn out something plain but palatable. But should anything change—temperature, timing, flour, Mercury being in Scorpio—I’d turn out a partly poofy pancake. I presented my partly poofy pancakes to people, and they were polite, but those platters were not particularly palatable.
During a group vacation last year, a friend made fresh sourdough loaves every day, and we devoured it. He gladly shared his knowledge, his starter, and his go-to recipe. I took it home, tried it out, and made a naturally leavened, artisanal pancake.
I took my confusion to YouTube, where I found Hendrik Kleinwächter’s “The Bread Code” channel and his video promising a course on “Your First Sourdough Bread.” I watched and learned a lot, but I couldn’t quite translate 30 minutes of intensive couch time to hours of mixing, raising, slicing, and baking. Pancakes, part three.
It felt like there had to be more to this. And there was—a whole GitHub repository more.
The Bread Code gave Kleinwächter a gratifying second career, and it’s given me bread I’m eager to serve people. This week alone, I’m making sourdough Parker House rolls, a rosemary olive loaf for Friendsgiving, and then a za’atar flatbread and standard wheat loaf for actual Thanksgiving. And each of us has learned more about perhaps the most important aspect of coding, bread, teaching, and lots of other things: patience.
Hendrik Kleinwächter on his Bread Code channel, explaining his book.
Resources, not recipes
The Bread Code is centered around a book, The Sourdough Framework. It’s an open source codebase that self-compiles into new LaTeX book editions and is free to read online. It has one real bread loaf recipe, if you can call a 68-page middle-section journey a recipe. It has 17 flowcharts, 15 tables, and dozens of timelines, process illustrations, and photos of sourdough going both well and terribly. Like any cookbook, there’s a bit about Kleinwächter’s history with this food, and some sourdough bread history. Then the reader is dropped straight into “How Sourdough Works,” which is in no way a summary.
“To understand the many enzymatic reactions that take place when flour and water are mixed, we must first understand seeds and their role in the lifecycle of wheat and other grains,” Kleinwächter writes. From there, we follow a seed through hibernation, germination, photosynthesis, and, through humans’ grinding of these seeds, exposure to amylase and protease enzymes.
I had arrived at this book with these specific loaf problems to address. But first, it asks me to consider, “What is wheat?” This sparked vivid memories of Computer Science 114, in which a professor, asked to troubleshoot misbehaving code, would instead tell students to “Think like a compiler,” or “Consider the recursive way to do it.”
And yet, “What is wheat” did help. Having a sense of what was happening inside my starter, and my dough (which is really just a big, slow starter), helped me diagnose what was going right or wrong with my breads. Extra-sticky dough and tightly arrayed holes in the bread meant I had let the bacteria win out over the yeast. I learned when to be rough with the dough to form gluten and when to gently guide it into shape to preserve its gas-filled form.
I could eat a slice of each loaf and get a sense of how things had gone. The inputs, outputs, and errors could be ascertained and analyzed more easily than in my prior stance, which was, roughly, “This starter is cursed and so am I.” Using hydration percentages, measurements relative to protein content, a few tests, and troubleshooting steps, I could move closer to fresh, delicious bread. Framework: accomplished.
I have found myself very grateful lately that Kleinwächter did not find success with 30-minute YouTube tutorials. Strangely, so has he.
Sometimes weird scoring looks pretty neat. Kevin Purdy
The slow bread of childhood dreams
“I have had some successful startups; I have also had disastrous startups,” Kleinwächter said in an interview. “I have made some money, then I’ve been poor again. I’ve done so many things.”
Most of those things involve software. Kleinwächter is a German full-stack engineer, and he has founded firms and worked at companies related to blogging, e-commerce, food ordering, travel, and health. He tried to escape the boom-bust startup cycle by starting his own digital agency before one of his products was acquired by hotel booking firm Trivago. After that, he needed a break—and he could afford to take one.
“I went to Naples, worked there in a pizzeria for a week, and just figured out, ‘What do I want to do with my life?’ And I found my passion. My passion is to teach people how to make amazing bread and pizza at home,” Kleinwächter said.
Kleinwächter’s formative bread experiences—weekend loaves baked by his mother, awe-inspiring pizza from Italian ski towns, discovering all the extra ingredients in a supermarket’s version of the dark Schwarzbrot—made him want to bake his own. Like me, he started with recipes, and he wasted a lot of time and flour turning out stuff that produced both failures and a drive for knowledge. He dug in, learned as much as he could, and once he had his head around the how and why, he worked on a way to guide others along the path.
Bugs and syntax errors in baking
When using recipes, there’s a strong, societally reinforced idea that there is one best, tested, and timed way to arrive at a finished food. That’s why we have America’s Test Kitchen, The Food Lab, and all manner of blogs and videos promoting food “hacks.” I should know; I wrote up a whole bunch of them as a young Lifehacker writer. I’m still a fan of such things, from the standpoint of simply getting food done.
As such, the ultimate “hack” for making bread is to use commercial yeast, i.e., dried “active” or “instant” yeast. A manufacturer has done the work of selecting and isolating yeast at its prime state and preserving it for you. Get your liquids and dough to a yeast-friendly temperature and you’ve removed most of the variables; your success should be repeatable. If you just want bread, you can make the iconic no-knead bread with prepared yeast and very little intervention, and you’ll probably get bread that’s better than you can get at the grocery store.
Baking sourdough—or “naturally leavened,” or with “levain”—means a lot of intervention. You are cultivating and maintaining a small ecosystem of yeast and bacteria, unleashing them onto flour, water, and salt, and stepping in after they’ve produced enough flavor and lift—but before they eat all the stretchy gluten bonds. What that looks like depends on many things: your water, your flours, what you fed your starter, how active it was when you added it, the air in your home, and other variables. Most important is your ability to notice things over long periods of time.
When things go wrong, debugging can be tricky. I was able to personally ask Kleinwächter what was up with my bread, because I was interviewing him for this article. There were many potential answers, including:
I should recognize, first off, that I was trying to bake the hardest kind of bread: Freestanding wheat-based sourdough
You have to watch—and smell—your starter to make sure it has the right mix of yeast to bacteria before you use it
Using less starter (lower “inoculation”) would make it easier not to over-ferment
Eyeballing my dough rise in a bowl was hard; try measuring a sample in something like an aliquot tube
Winter and summer are very different dough timings, even with modern indoor climate control.
But I kept with it. I was particularly susceptible to wanting things to go quicker and demanding to see a huge rise in my dough before baking. This ironically leads to the flattest results, as the bacteria eats all the gluten bonds. When I slowed down, changed just one thing at a time, and looked deeper into my results, I got better.
The Bread Code YouTube page and the ways in which one must cater to algorithms.
Credit: The Bread Code
The Bread Code YouTube page and the ways in which one must cater to algorithms. Credit: The Bread Code
YouTube faces and TikTok sausage
Emailing and trading video responses with Kleinwächter, I got the sense that he, too, has learned to go the slow, steady route with his Bread Code project.
For a while, he was turning out YouTube videos, and he wanted them to work. “I’m very data-driven and very analytical. I always read the video metrics, and I try to optimize my videos,” Kleinwächter said. “Which means I have to use a clickbait title, and I have to use a clickbait-y thumbnail, plus I need to make sure that I catch people in the first 30 seconds of the video.” This, however, is “not good for us as humans because it leads to more and more extreme content.”
Kleinwächter also dabbled in TikTok, making videos in which, leaning into his German heritage, “the idea was to turn everything into a sausage.” The metrics and imperatives on TikTok were similar to those on YouTube but hyperscaled. He could put hours or days into a video, only for 1 percent of his 200,000 YouTube subscribers to see it unless he caught the algorithm wind.
The frustrations inspired him to slow down and focus on his site and his book. With his community’s help, The Bread Code has just finished its second Kickstarter-backed printing run of 2,000 copies. There’s a Discord full of bread heads eager to diagnose and correct each other’s loaves and occasional pull requests from inspired readers. Kleinwächter has seen people go from buying what he calls “Turbo bread” at the store to making their own, and that’s what keeps him going. He’s not gambling on an attention-getting hit, but he’s in better control of how his knowledge and message get out.
“I think homemade bread is something that’s super, super undervalued, and I see a lot of benefits to making it yourself,” Kleinwächter said. “Good bread just contains flour, water, and salt—nothing else.”
A test loaf of rosemary olive sourdough bread. An uneven amount of olive bits ended up on the top and bottom, because there is always more to learn.
Credit: Kevin Purdy
A test loaf of rosemary olive sourdough bread. An uneven amount of olive bits ended up on the top and bottom, because there is always more to learn. Credit: Kevin Purdy
You gotta keep doing it—that’s the hard part
I can’t say it has been entirely smooth sailing ever since I self-certified with The Bread Code framework. I know what level of fermentation I’m aiming for, but I sometimes get home from an outing later than planned, arriving at dough that’s trying to escape its bucket. My starter can be very temperamental when my house gets dry and chilly in the winter. And my dough slicing (scoring), being the very last step before baking, can be rushed, resulting in some loaves with weird “ears,” not quite ready for the bakery window.
But that’s all part of it. Your sourdough starter is a collection of organisms that are best suited to what you’ve fed them, developed over time, shaped by their environment. There are some modern hacks that can help make good bread, like using a pH meter. But the big hack is just doing it, learning from it, and getting better at figuring out what’s going on. I’m thankful that folks like Kleinwächter are out there encouraging folks like me to slow down, hack less, and learn more.
The researchers give the example of a 10-year-old patient who was found unconscious in her bedroom. The psychiatry team was called in to consult for a suicide attempt by hanging. But when the girl was evaluated, she was tearful, denied past or recent suicide attempts, and said she was only participating in the blackout challenge. Still, she reported being in depressed moods, having feelings of hopelessness, having thoughts of suicide since age 9, being bullied, and having no friends. Family members reported unstable housing, busy or absent parental figures, and a family history of a suicide attempts.
If the girl’s injuries were unintentional, stemming from the poor choice to participate in the life-threatening TikTok challenge, clinicians would discharge the patient home with a recommendation for outpatient mental health care to address underlying psychiatric conditions and stressors. But if the injuries were self-inflicted with an intent to die, the clinicians would recommend inpatient psychiatric treatment for safety, which would allow for further risk assessment, monitoring, and treatment for the suspected suicide attempt.
It’s critical to make the right call here. Children and teens who attempt suicide are at risk of more attempts, both immediately and in the future. But to make matters even more complex, injuries from social media challenges have the potential to spur depression and post-traumatic stress disorder. Those, in turn, could increase the risk of suicide attempts.
To keep kids and teens safe, the Ataga and Arnold call for more awareness about the dangers of TikTok challenges, as well as empathetic psychiatric assessments using kid-appropriate measurements. They also call for more research. While there are a handful of case studies on TikTok challenge injuries and deaths among kids and teens, there’s a lack of large-scale data. More research is needed to “demonstrate the role of such challenges as precipitating factors in unintentional and intentional injuries, suicidal behaviors, and deaths among children in the US,” the psychiatrists write.
If you or someone you know is in crisis, call or text 988 for the Suicide and Crisis Lifeline or contact the Crisis Text Line by texting TALK to 741741.
After rumors swirled that TikTok owner ByteDance had lost tens of millions after an intern sabotaged its AI models, ByteDance issued a statement this weekend hoping to silence all the social media chatter in China.
In a social media post translated and reviewed by Ars, ByteDance clarified “facts” about “interns destroying large model training” and confirmed that one intern was fired in August.
According to ByteDance, the intern had held a position in the company’s commercial technology team but was fired for committing “serious disciplinary violations.” Most notably, the intern allegedly “maliciously interfered with the model training tasks” for a ByteDance research project, ByteDance said.
None of the intern’s sabotage impacted ByteDance’s commercial projects or online businesses, ByteDance said, and none of ByteDance’s large models were affected.
Online rumors suggested that more than 8,000 graphical processing units were involved in the sabotage and that ByteDance lost “tens of millions of dollars” due to the intern’s interference, but these claims were “seriously exaggerated,” ByteDance said.
The tech company also accused the intern of adding misleading information to his social media profile, seemingly posturing that his work was connected to ByteDance’s AI Lab rather than its commercial technology team. In the statement, ByteDance confirmed that the intern’s university was notified of what happened, as were industry associations, presumably to prevent the intern from misleading others.
ByteDance’s statement this weekend didn’t seem to silence all the rumors online, though.
One commenter on ByteDance’s social media post disputed the distinction between the AI Lab and the commercial technology team, claiming that “the commercialization team he is in was previously under the AI Lab. In the past two years, the team’s recruitment was written as AI Lab. He joined the team as an intern in 2021, and it might be the most advanced AI Lab.”
Enlarge / Andrew J. Pincus, attorney for TikTok and ByteDance, leaves the E. Barrett Prettyman US Court House with members of his legal team as the U.S. Court of Appeals hears oral arguments in the case TikTok Inc. v. Merrick Garland on September 16 in Washington, DC.
The fight to keep TikTok operating unchanged in the US reached an appeals court Monday, where TikTok and US-based creators teamed up to defend one of the world’s most popular apps from a potential US ban.
TikTok lawyer Andrew Pincus kicked things off by warning a three-judge panel that a law targeting foreign adversaries that requires TikTok to divest from its allegedly China-controlled owner, ByteDance, is “unprecedented” and could have “staggering” effects on “the speech of 170 million Americans.”
Pincus argued that the US government was “for the first time in history” attempting to ban speech by a specific US speaker—namely, TikTok US, the US-based entity that allegedly curates the content that Americans see on the app.
The government justified the law by claiming that TikTok may in the future pose a national security risk because updates to the app’s source code occur in China. Essentially, the US is concerned that TikTok collecting data in the US makes it possible for the Chinese government to both spy on Americans and influence Americans by manipulating TikTok content.
But Pincus argued that there’s no evidence of that, only the FBI warning “about the potential that the Chinese Communist Party could use TikTok to threaten US homeland security, censor dissidents, and spread its malign influence on US soil.” And because the law carves out China-owned and controlled e-commerce apps like Temu and Shein—which a US commission deemed a possible danger and allegedly process even more sensitive data than TikTok—the national security justification for targeting TikTok is seemingly so under-inclusive as to be fatal to the government’s argument, Pincus argued.
Jeffrey Fisher, a lawyer for TikTok creators, agreed, warning the panel that “what the Supreme Court tells us when it comes to under-inclusive arguments is” that they “often” are “a signal that something else is at play.”
Daniel Tenny, a lawyer representing the US government, defended Congress’ motivations for passing the law, explaining that the data TikTok collects is “extremely valuable to a foreign adversary trying to compromise the security” of the US. He further argued that a foreign adversary controlling “what content is shown to Americans” is just as problematic.
Rather than targeting Americans’ expression on the app, Tenny argued that because ByteDance controls TikTok’s source code, the speech on TikTok is not American speech but “expression by Chinese engineers in China.” This is the “core point” that the US hopes the appeals court will embrace, that as long as ByteDance oversees TikTok’s source code, the US will have justified concerns about TikTok data security and content manipulation. The only solution, the US government argues, is divestment.
TikTok has long argued that divestment isn’t an option and that the law will force a ban. Pincus told the court that the “critical issue” with the US government’s case is that the US does not have any evidence that TikTok US is under Chinese control. Because the US is only concerned about some “future Chinese control,” the burden that the law places on speech must meet the highest standard of constitutional scrutiny. Any finding otherwise, Pincus warned the court, risked turning the First Amendment “on its head,” potentially allowing the government to point to foreign ownership to justify regulating US speech on any platform.
But as the panel explained, the US government had tried for two years to negotiate with ByteDance and find through Project Texas a way to maintain TikTok in the US while avoiding national security concerns. Because every attempt to find a suitable national security arrangement has seemingly failed, Congress was potentially justified in passing the law, the panel suggested, especially if the court rules that the law is really just trying to address foreign ownership—not regulate content. And even though the law currently only targets TikTok directly, the government could argue that’s seemingly because TikTok is so far the only foreign adversary-controlled company flagged as a potential national security risk, the panel suggested.
TikTok insisted that divestment is not the answer and that Congress has made no effort to find a better solution. Pincus argued that the US did not consider less restrictive means for achieving the law’s objectives without burdening speech on TikTok, such as a disclosure mechanism that could prevent covert influence on the app by a foreign adversary.
But US circuit judge Neomi Rao pushed back on this, suggesting that disclosure maybe isn’t “always” the only appropriate mechanism to block propaganda in the US—especially when the US government has no way to quickly assess constantly updated TikTok source code developed in China. Pincus had confirmed that any covert content manipulation uncovered on the app would only be discovered after users were exposed.
“They say it would take three years to just review the existing code,” Rao said. “How are you supposed to have disclosure in that circumstance?”
“I think disclosure has been the historic answer for covert content manipulation,” Pincus told the court, branding the current law as “unusual” for targeting TikTok and asking the court to overturn the alleged ban.
The government has given ByteDance until mid-January to sell TikTok, or else the app risks being banned in the US. The appeals court is expected to rule by early December.
Several kids died taking part in the “Blackout Challenge,” which Third Circuit Judge Patty Shwartz described in her opinion as encouraging users “to choke themselves with belts, purse strings, or anything similar until passing out.”
Because TikTok promoted the challenge in children’s feeds, Tawainna Anderson counted among mourning parents who attempted to sue TikTok in 2022. Ultimately, she was told that TikTok was not responsible for recommending the video that caused the death of her daughter Nylah.
In her opinion, Shwartz wrote that Section 230 does not bar Anderson from arguing that TikTok’s algorithm amalgamates third-party videos, “which results in ‘an expressive product’ that ‘communicates to users’ [that a] curated stream of videos will be interesting to them.”
The judge cited a recent Supreme Court ruling that “held that a platform’s algorithm that reflects ‘editorial judgments’ about compiling the third-party speech it wants in the way it wants’ is the platform’s own ‘expressive product’ and is therefore protected by the First Amendment,” Shwartz wrote.
Because TikTok’s For You Page (FYP) algorithm decides which third-party speech to include or exclude and organizes content, TikTok’s algorithm counts as TikTok’s own “expressive activity.” That “expressive activity” is not protected by Section 230, which only shields platforms from liability for third-party speech, not platforms’ own speech, Shwartz wrote.
The appeals court has now remanded the case to the district court to rule on Anderson’s remaining claims.
Section 230 doesn’t permit “indifference” to child death
According to Shwartz, if Nylah had discovered the “Blackout Challenge” video by searching on TikTok, the platform would not be liable, but because she found it on her FYP, TikTok transformed into “an affirmative promoter of such content.”
Now TikTok will have to face Anderson’s claims that are “premised upon TikTok’s algorithm,” Shwartz said, as well as potentially other claims that Anderson may reraise that may be barred by Section 230. The District Court will have to determine which claims are barred by Section 230 “consistent” with the Third Circuit’s ruling, though.
Concurring in part, circuit Judge Paul Matey noted that by the time Nylah took part in the “Blackout Challenge,” TikTok knew about the dangers and “took no and/or completely inadequate action to extinguish and prevent the spread of the Blackout Challenge and specifically to prevent the Blackout Challenge from being shown to children on their” FYPs.
Matey wrote that Section 230 does not shield corporations “from virtually any claim loosely related to content posted by a third party,” as TikTok seems to believe. He encouraged a “far narrower” interpretation of Section 230 to stop companies like TikTok from reading the Communications Decency Act as permitting “casual indifference to the death of a 10-year-old girl.”
“Anderson’s estate may seek relief for TikTok’s knowing distribution and targeted recommendation of videos it knew could be harmful,” Matey wrote. That includes pursuing “claims seeking to hold TikTok liable for continuing to host the Blackout Challenge videos knowing they were causing the death of children” and “claims seeking to hold TikTok liable for its targeted recommendations of videos it knew were harmful.”
“The company may decide to curate the content it serves up to children to emphasize the lowest virtues, the basest tastes,” Matey wrote. “But it cannot claim immunity that Congress did not provide.”
Anderson’s lawyers at Jeffrey Goodman, Saltz Mongeluzzi & Bendesky PC previously provided Ars with a statement after the prior court’s ruling, indicating that parents weren’t prepared to stop fighting in 2022.
“The federal Communications Decency Act was never intended to allow social media companies to send dangerous content to children, and the Andersons will continue advocating for the protection of our children from an industry that exploits youth in the name of profits,” lawyers said.
TikTok did not immediately respond to Ars’ request to comment but previously vowed to “remain vigilant in our commitment to user safety” and “immediately remove” Blackout Challenge content “if found.”
Enlarge/ Still from a Chinese social media video featuring two people imitating imperfect AI-generated video outputs.
It’s no secret that despite significant investment from companies like OpenAI and Runway, AI-generated videos still struggle to achieve convincing realism at times. Some of the most amusing fails end up on social media, which has led to a new response trend on Chinese social media platforms TikTok and Bilibili where users create videos that mock the imperfections of AI-generated content. The trend has since spread to X (formerly Twitter) in the US, where users have been sharing the humorous parodies.
In particular, the videos seem to parody image synthesis videos where subjects seamlessly morph into other people or objects in unexpected and physically impossible ways. Chinese social media replicate these unusual visual non-sequiturs without special effects by positioning their bodies in unusual ways as new and unexpected objects appear on-camera from out of frame.
This exaggerated mimicry has struck a chord with viewers on X, who find the parodies entertaining. User @theGioM shared one video, seen above. “This is high-level performance arts,” wrote one X user. “art is imitating life imitating ai, almost shedded a tear.” Another commented, “I feel like it still needs a motorcycle the turns into a speedboat and takes off into the sky. Other than that, excellent work.”
An example Chinese social media video featuring two people imitating imperfect AI-generated video outputs.
While these parodies poke fun at current limitations, tech companies are actively attempting to overcome them with more training data (examples analyzed by AI models that teach them how to create videos) and computational training time. OpenAI unveiled Sora in February, capable of creating realistic scenes if they closely match examples found in training data. Runway’s Gen-3 Alpha suffers a similar fate: It can create brief clips of convincing video within a narrow set of constraints. This means that generated videos of situations outside the dataset often end up hilariously weird.
An AI-generated video that features impossibly-morphing people and animals. Social media users are imitating this style.
It’s worth noting that actor Will Smith beat Chinese social media users to this trend in February by poking fun at a horrific 2023 viral AI-generated video that attempted to depict him eating spaghetti. That may also bring back memories of other amusing video synthesis failures, such as May 2023’s AI-generated beer commercial, created using Runway’s earlier Gen-2 model.
An example Chinese social media video featuring two people imitating imperfect AI-generated video outputs.
While imitating imperfect AI videos may seem strange to some, people regularly make money pretending to be NPCs (non-player characters—a term for computer-controlled video game characters) on TikTok.
For anyone alive during the 1980s, witnessing this fast-changing and often bizarre new media world can cause some cognitive whiplash, but the world is a weird place full of wonders beyond the imagination. “There are more things in Heaven and Earth, Horatio, than are dreamt of in your philosophy,” as Hamlet once famously said. “Including people pretending to be video game characters and flawed video synthesis outputs.”
TikTok has been sending inaccurate and misleading news-style alerts to users’ phones, including a false claim about Taylor Swift and a weeks-old disaster warning, intensifying fears about the spread of misinformation on the popular video-sharing platform.
Among alerts seen by the Financial Times was a warning about a tsunami in Japan, labeled “BREAKING,” that was posted in late January, three weeks after an earthquake had struck.
Other notifications falsely stated that “Taylor Swift Canceled All Tour Dates in What She Called ‘Racist Florida’” and highlighted a five-year “ban” for a US baseball player that originated as an April Fool’s day prank.
The notifications, which sometimes contain summaries from user-generated posts, pop up on screen in the style of a news alert. Researchers say that format, adopted widely to boost engagement through personalized video recommendations, may make users less critical of the veracity of the content and open them up to misinformation.
“Notifications have this additional stamp of authority,” said Laura Edelson, a researcher at Northeastern University, in Boston. “When you get a notification about something, it’s often assumed to be something that has been curated by the platform and not just a random thing from your feed.”
Social media groups such as TikTok, X, and Meta are facing greater scrutiny to police their platforms, particularly in a year of major national elections, including November’s vote in the US. The rise of artificial intelligence adds to the pressure given that the fast-evolving technology makes it quicker and easier to spread misinformation, including through synthetic media, known as deepfakes.
TikTok, which has more than 1 billion global users, has repeatedly promised to step up its efforts to counter misinformation in response to pressure from governments around the world, including the UK and EU. In May, the video-sharing platform committed to becoming the first major social media network to label some AI-generated content automatically.
The false claim about Swift canceling her tour in Florida, which also circulated on X, mirrored an article published in May in the satirical newspaper The Dunning-Kruger Times, although this article was not linked or directly referred to in the TikTok post.
At least 20 people said on a comment thread that they had clicked on the notification and were directed to a video on TikTok repeating the claim, even though they did not follow the account. At least one person in the thread said they initially thought the notification “was a news article.”
Swift is still scheduled to perform three concerts in Miami in October and has not publicly called Florida “racist.”
Another push notification inaccurately stated that a Japanese pitcher who plays for the Los Angeles Dodgers faced a ban from Major League Baseball: “Shohei Ohtani has been BANNED from the MLB for 5 years following his gambling investigation… ”
The words directly matched the description of a post uploaded as an April Fools’ day prank. Tens of commenters on the original video, however, reported receiving alerts in mid-April. Several said they had initially believed it before they checked other sources.
Users have also reported notifications that appeared to contain news updates but were generated weeks after the event.
One user received an alert on January 23 that read: “BREAKING: A tsunami alert has been issued in Japan after a major earthquake.” The notification appeared to refer to a natural disaster warning issued more than three weeks earlier after an earthquake struck Japan’s Noto peninsula on New Year’s Day.
TikTok said it had removed the specific notifications flagged by the FT.
The alerts appear automatically to scrape the descriptions of posts that are receiving, or are likely to receive, high levels of engagement on the viral video app, owned by China’s ByteDance, researchers said. They seem to be tailored to users’ interests, which means that each one is likely to be limited to a small pool of people.
“The way in which those alerts are positioned, it can feel like the platform is speaking directly to [users] and not just a poster,” said Kaitlyn Regehr, an associate professor of digital humanities at University College London.
TikTok declined to reveal how the app determined which videos to promote through notifications, but the sheer volume of personalized content recommendations must be “algorithmically generated,” said Dani Madrid-Morales, co-lead of the University of Sheffield’s Disinformation Research Cluster.
Edelson, who is also co-director of the Cybersecurity for Democracy group, suggested that a responsible push notification algorithm could be weighted towards trusted sources, such as verified publishers or officials. “The question is: Are they choosing a high-traffic thing from an authoritative source?” she said. “Or is this just a high-traffic thing?”
Additional reporting by Hannah Murphy in San Francisco and Cristina Criddle in London.
