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Dear Sophie: How will this election nail-biter affect immigration?

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Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.

“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”

Extra Crunch members receive access to weekly “Dear Sophie” columns; use promo code ALCORN to purchase a one or two-year subscription for 50% off.


Dear Sophie:

The last 24 hours have been a nail-biter; I feel powerless and I’m angry that we’ve come to this. I’m worried things won’t improve and I’m confused about where we even stand.

Sometimes I just feel so very, very tired of the struggle. I am just so ready to let go. I want to live in a world where we can create harmony, peace and opportunity for all. Can I still find that in the United States?

— Wanting in Walnut Creek

Dear Wanting,

I hear you.

The good news is that there is great potential, even as the world watches the U.S. presidential election results. If anything, what the last four years have taught me is that two clichés are really true: necessity is the mother of invention, and, where there is a will, there is a way. I can relate to many folks around the world because I know what it’s like to have the world of Silicon Valley feel so close, yet so far away, at a time when I felt powerless to make a difference.

Looking back over the past four years, amazing things have been possible for our clients and my team at Alcorn Immigration Law. I founded the firm out of my kitchen just years ago when my kids were toddlers. I would look out my kitchen window hand-washing tiny baby dishes. I can still remember the feeling of the suds on my fingers as I gazed longingly at the tall building on Castro Street in downtown Mountain View where 500 Startups used to sit on the top floor. YC was just down the street.

I felt so powerless. I desperately wanted to make the world a better place, and reaching the world of Silicon Valley, even though it was just past my backyard, seemed like getting to Mars.

From those humble beginnings to now, as I founded and bootstrapped Alcorn Immigration Law on my own journey of becoming a single mom, I know what’s possible, even during the last four years of the Trump administration. We’ve had amazing success — claiming thousands of victories in supporting companies, people and families to live and work legally in the United States. If I was able to grow my firm during the last four years, I know that it’s possible for anybody to follow their heart and succeed. It’s our human essence to long to be a creator in this world, and anybody can and deserves to make a difference.

And here is what else I know: immigration law is created by acts of Congress and signed into law by the president. Mere tweets may be intended to try to bend the rules, but they cannot break them. That is what democracy is about.

In democracy, we have agreed to abide by basic laws, such as the inviolable dignity of the human being and that we want to agree on procedures for how we make decisions, like the process of passing a law about immigration. Democracy is not about majority tyranny. Democracy is about the fact that we uphold a few principles and we agreed on a decision-making process. When Trump ignores our basic laws and he ignores our legal processes, democracy is in peril.

But democracy does not need to be disrupted, it only requires small adjustments to thrive. In any group it is possible to make jointly supported decisions, taking the needs and resources of all into consideration. “Although the world is complex and decision making is complex, the components of decision making are simple,” according to Richard Graf, founder of K-i-E. Simple tools like the DecisionMaker can allow a miracle to happen — in an environment of openness and anonymity, we can all safely share our needs and concerns so that proposals can be formed based on collective best practices, knowledge, experience, intelligence and intuition. Even if it’s a complex situation, the way forward can immediately become clear.

And in our democracy, the paths to live and work in the U.S. will always remain viable, even if we need to remove a branch or navigate around a new boulder. Here at Alcorn, despite the furor and fear-mongering present in the world surrounding immigration, we are continually securing real victories for our clients. Not a client yet? Global founders can still create a startup, pitch it to investors and secure pathways to live and work legally in the United States with visas, green cards and citizenship.

So I know this and will repeat: Whatever the election results, there will still be many ways for people to legally navigate the U.S. immigration process and access the opportunity and security of life here. For more insight on these ways, please join my Election Results Webinar next week.

In the meantime, here are my thoughts on how the election results will affect the future of U.S. immigration:

Looking ahead, if Biden takes the victory, he has pledged to undo all Trump-era immigration regulations in the first 100 days and support comprehensive immigration reform. He promised to promote immigrant entrepreneurship, which could finally mean a startup visa! He also wants to speed up naturalization, rescind the Muslim travel bans, pass legislation to expand the number of H-1Bs, increase the amount of employment-based green cards, exempt international STEM PhD graduates from needing to await a priority date, create a new type of green card to promote regional economic development and support immigrant entrepreneur incubators.

Alternatively, we can expect that a Trump administration would continue restricting immigration, leading to litigation and judges deciding the fate of many recent policies. We can foresee a continued COVID freeze on green card interviews at consulates.

Also, DHS recently announced its intent to remove the randomness from the H-1B lottery and prioritize the annual H-1B selection process from highest to lowest wage starting in spring 2021. I’m sure there will be litigation about this; in the meantime, Alcorn Immigration Law continues to recommend that all employers proceed with registering employees and candidates in the lottery as usual. These details will take time to shake out and we don’t want anybody to lose a chance at being selected.

In other updates, immigration is just continuing along and there is actually some great news for folks: The State Department recently released the November Visa Bulletin and it stayed the same from October. (If you think your priority date is current or may be current soon, please contact your attorney as soon as possible to discuss filing your I-485 this month to avoid the possibility of retrogression in December!)

And if you need the freedom to build your startup, but were told that you don’t yet qualify for an O-1A visa, EB-1A or EB-2 NIW green card, you can join me in Extraordinary Ability Bootcamp with promo code DEARSOPHIE to receive 20% off.

We’re optimistic about the future. Life always offers us opportunities to grow through contrast and uncertainty, and we remain passionate about our mission to create greater freedom, empowerment, knowledge and love in the world.

Sophie


Have a question? Ask it here. We reserve the right to edit your submission for clarity and/or space. The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer here. You can contact Sophie directly at Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major podcast platforms. If you’d like to be a guest, she’s accepting applications!

Lyron Foster is a Hawaii based African American Musician, Author, Actor, Blogger, Filmmaker, Philanthropist and Multinational Serial Tech Entrepreneur.

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GDPR enforcement must level up to catch big tech, report warns

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A new report by European consumer protection umbrella group Beuc, reflecting on the barriers to effective cross-border enforcement of the EU’s flagship data protection framework, makes awkward reading for the regional lawmakers and regulators as they seek to shape the next decades of digital oversight across the bloc.

Beuc’s members filed a series of complaints against Google’s use of location data in November 2018 — but some two years on from raising privacy concerns there’s been no resolution of the complaints.

The tech giant continues to make billions in ad revenue, including by processing and monetize Internet users’ location data. Its lead data protection supervisor, under GDPR’s one-stop-shop mechanism for dealing with cross-border complaints, Ireland’s Data Protection Commission (DPC), did finally open an investigation in February this year.

But it could still be years before Google faces any regulatory action in Europe related to its location tracking.

This is because Ireland’s DPC has yet to issue any cross-border GDPR decisions, some 2.5 years after the regulation started being applied. (Although, as we reported recently, a case related to a Twitter data breach is inching towards a result in the coming days.)

By contrast, France’s data watchdog, the CNIL, was able to complete a GDPR investigation into the transparency of Google’s data processing in much quicker order last year.

This summer French courts also confirmed the $57M fine it issued, slapping down Google’s appeal.

But the case predated Google coming under the jurisdiction of the DPC. And Ireland’s data regulator has to deal with a disproportionate number of multinational tech companies, given how many have established their EU base in the country.

The DPC has a major backlog of cross-border cases, with more than 20 GDPR probes involving a number of tech companies including Apple, Facebook/WhatsApp and LinkedIn. (Google has also been under investigation in Ireland over its adtech since 2019.)

This week the EU’s internet market commissioner, Thierry Breton, said regional lawmakers are well aware of enforcement “bottlenecks” in the General Data Protection Regulation (GDPR).

He suggested the Commission has learned lessons from this friction — claiming it will ensure similar concerns don’t affect the future working of a regulatory proposal related to data reuse that he was out speaking in public to introduce.

The Commission wants to create standard conditions for rights-respecting reuse of industrial data across the EU, via a new Data Governance Act (DGA), which proposes similar oversight mechanisms as are involved in the EU’s oversight of personal data — including national agencies monitoring compliance and a centralized EU steering body (which they’re planning to call the European Data Innovation Board as a mirror entity to the European Data Protection Board).

The Commission’s ambitious agenda for updating and expanding the EU’s digital rules framework, means criticism of GDPR risks taking the shine off the DGA before the ink has dried on the proposal document — putting pressure on lawmakers to find creative ways to unblock GDPR’s enforcement “bottleneck”. (Creative because national agencies are responsibility for day to day oversight, and Member States are responsible for resourcing DPAs.) 

In an initial GDPR review this summer, the Commission praised the regulation as a “modern and horizontal piece of legislation” and a “global reference point” — claiming it’s served as a point of inspiration for California’s CCPA and other emerging digital privacy frameworks around the world.

But they also conceded GDPR enforcement is lacking.

The best answer to this concern “will be a decision from the Irish data protection authority about important cases”, the EU’s justice commissioner, Didier Reynders, said in June.

Five months later European citizens are still waiting.

Beuc’s report — which it’s called The long and winding road: Two years of the GDPR: A cross-border data protection case from a consumer perspective — details the procedural obstacles its member organizations have faced in seeking to obtain a decision related to the original complaints, which were filed with a variety of DPAs around the EU.

This includes concerns of the Irish DPC making unnecessary “information and admissibility checks”; as well as rejecting complaints brought by an interested organization on the grounds they lack a mandate under Irish law, because it does not allow for third party redress (yet the Dutch consumer organization had filed the complaint under Dutch law which does…).

The report also queries why the DPC chose to open an own volition enquiry into Google’s location data activities (rather than a complaint-led enquiry) — which Beuc says risks a further delay to reaching a decision on the complaints themselves.

It further points out that the DPC’s probe of Google only looks at activity since February 2020 not November 2018 when the complaints were made — meaning there’s a missing chunk of Google’s location data processing that’s not even being investigated yet.

It notes that three of its member organizations involved in the Google complaints had considered applying for a judicial review of the DPC’s decision (NB: others have resorted to that route) — but they decided not to proceed in part because of the significant legal costs it would have entailed.

The report also points out the inherent imbalance of GDPR’s one-stop-shop mechanism shifting the administration of complaints to the location of companies under investigation — arguing they therefore benefit from “easier access to justice” (vs the ordinary consumer faced with undertaking legal proceedings in a different country and (likely) language).

“If the lead authority is in a country with tradition in ‘common law’, like Ireland, things can become even more complex and costly,” Beuc’s report further notes.

Another issue it raises is the overarching one of rights complaints having to fight what it dubs ‘a moving target’ — given well-resourced tech companies can leverage regulatory delays to (superficially) tweak practices, greasing continued abuse with misleading PR campaigns. (Something Beuc accuses Google of doing.)

DPAs must “adapt their enforcement approach to intervene more rapidly and directly”, it concludes.

“Over two years have passed since the GDPR became applicable, we have now reached a turning point. The GDPR must finally show its strength and become a catalyst for urgently needed changes in business practices,” Beuc goes on in a summary of its recommendations. “Our members experience and that of other civil society organisations, reveals a series of obstacles that significantly hamper the effective application of the GDPR and the correct functioning of its enforcement system.

BEUC recommends to the relevant EU and national authorities to make a comprehensive and joint effort to ensure the swift enforcement of the rules and improve the position of data subjects and their representing organisations, particularly in the framework of cross-border enforcement cases.”

We reached out to the Commission and the Irish DPC with questions about the report. But at the time of writing neither had responded. We’ve also asked Google for comment.

Beuc earlier sent a list of eight recommendations for “efficient” GDPR enforcement to the Commission in May.

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Equity Dive: Edtech’s 2020 wakeup call

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Hello and welcome back to Equity, TechCrunch’s venture capital-focused podcast (now on Twitter!), where we unpack the numbers behind the headlines.

This week, we’re doing a first-ever for the show and taking a deep dive into one specific sector: Edtech.

Natasha Mascarenhas has covered education technology since Stanford first closed down classes in the wake of the coronavirus pandemic. In the wake of the historic shuttering of much of the United States’ traditional institutions of education, the sector has formed new unicorns, attracted record-breaking venture capital totals, and most of all, enjoyed time in a long-overdue spotlight.

For this Equity Dive, we zero into one part of that conversation: Edtech’s impact on higher education. We brought together Udacity co-founder and Kitty Hawk CEO Sebastian Thrun, Eschaton founder and college drop-out Ian Dilick, and Cowboy Ventures investor Jomayra Herrera to answer our biggest questions.

Here’s what we got into:

  • How the state of remote school is leading to gap years among students
  • A framework for how to think of higher education’s main three products (including which is most defensible over time)
  • What learnings we can take from this COVID-19 experiment on remote schooling to apply to the future
  • Why ed-tech is flocking to the notion of life-long learning
  • And the reality of who self-paced learning serves — and who it leaves out

And much, much more. If you celebrate, thank you for spending part of your Thanksgiving with the Equity crew. We’re so thankful to have this platform and audience, and it means a ton that y’all tune in each week.

Finally, if you liked this format and want to see more, feel free to tweet us your thoughts or leave us a review on Apple Podcasts. Talk soon!

Equity drops every Monday at 7:00 a.m. PDT and Thursday afternoon as fast as we can get it out, so subscribe to us on Apple PodcastsOvercastSpotify and all the casts.

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TikTok’s epic rise and stumble

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TikTok’s rise in the West is unprecedented for any Chinese tech company, and so is the amount of attention it has attracted from politicians worldwide. Below is a timeline of how TikTok grew from what some considered another “copycat” short video app to global dominance and eventually became a target of the U.S. government.

2012-2017: The emergence of TikTok

These years were a period of fast growth for ByteDance, the Beijing-based parent company behind TikTok. Originally launched in China as Douyin, the video-sharing app quickly was wildly successful in its domestic market before setting its sights on the rest of the world. 

2012 

Zhang Yiming, a 29-year-old serial engineer, establishes ByteDance in Beijing.

2014

Chinese product designer Alex Zhu launches Musical.ly.

2016

ByteDance launches Douyin, which is regarded by many as a Musical.ly clone. It launches Douyin’s overseas version TikTok later that year.

2017-2019: TikTok takes off in the United States

TikTok merges with Musical.ly and and launches in the U.S., where it quickly becomes popular, the first social media app from a Chinese tech company to achieve that level of success there. But at the same time, its ownership leads to questions about national security and censorship, against the backdrop of the U.S.-China tariff wars and increased scrutiny of Chinese tech companies (including Huawei and ZTE) under the Trump administration.

2017

November

ByteDance buys Musical.ly for $800 million to $1 billion. (link)

2018

August

TikTok merges with Musical.ly and becomes available in the U.S. (link)

October

TikTok surpassed Facebook, Instagram, Snapchat and YouTube in downloads. (link)

November

Facebook launches TikTok rival Lasso. (link)

2019

February

TikTok reaches one billion installs on the App Store and Google Play. (link)

The U.S. Federal Trade Commission fines TikTok $5.7 million over violation of children privacy law. (link)

May

TikTok tops the App Store for the fifth quarter in a row. (link)

September

TikTok is found censoring topics considered sensitive by the Beijing government. (link)

October

TikTok bans political ads (link) but does not appear to take action on hashtags related to American politics. (link)

TikTok taps corporate law firm K&L Gates for advice on content moderation in the U.S. (link)

U.S. lawmakers ask intelligence chief Joseph Maguire to investigate if TikTok poses a threat to national security. (link)

TikTok says it has never been asked by the Chinese government to remove any content and would not do so if asked. (link)

November

The Committee on Foreign Investment in the United States reportedly opens a national security probe into TikTok. (link)

Instagram launches TikTok rival Reels. (link)

TikTok apologizes for removing a viral video about abuses against Uighurs. (link)

December

The U.S. Navy reportedly bans TikTok. (link)

The first half of 2020: Growth amid government scrutiny

The app is now a mainstay of online culture in America, especially among Generation Z, and its user base has grown even wider as people seek diversions during the COVID-19 pandemic. But TikTok faces an escalating series of government actions, creating confusion about its future in America. 

A man wearing a shirt promoting TikTok is seen at an Apple store in Beijing

A man wearing a shirt promoting TikTok is seen at an Apple store in Beijing on Friday, July 17, 2020. (AP Photo/Ng Han Guan)

2020

January

Revived Dubsmash grows into TikTok’s imminent rival. (link)

March

TikTok lets outside experts examine its moderation practices at its “transparency center.” (link)

Senators introduce a bill to restrict the use of TikTok on government devices. (link)

TikTok brings in outside experts to craft content policies. (link)

April

TikTok introduces parental controls. (link)

TikTok tops two billion downloads. (link)

June

TikTok discloses how its content recommendation system works. (link)

YouTube launches TikTok rival. (link)

July

Facebook shuts down TikTok rival Lasso. (link)

Secretary of State Mike Pompeo says the U.S. is looking to ban TikTok. (link)

TikTok announced a $200 million fund for U.S. creators. (link)

Trump told reporters he will use executive power to ban TikTok. (link)

The second half of 2020: TikTok versus the U.S. government

After weeks of speculation, Trump signs an executive order in August against ByteDance. ByteDance begins seeking American buyers for TikTok, but the company also fights the executive order in court. A group of TikTok creators also file a lawsuit challenging the order. The last few months of 2020 become a relentless, and often confusing, flurry of events and new developments for TikTok observers, with no end in sight. 

August

Reports say ByteDance agrees to divest TikTok’s U.S. operations and Microsoft will take over. (link)

Trump signals opposition to the ByteDance-Microsoft deal. (link)

Microsoft announces discussions about the TikTok purchase will complete no later than September 15. (link)

Trump shifts tone and says he expects a cut from the TikTok sale. (link)

TikTok broadens fact-checking partnerships ahead of the U.S. election. (link)

August 7: In the most significant escalation of tensions between the U.S. government and TikTok, Trump signs an executive order banning “transactions” with ByteDance in 45 days, or on September 20. (link). TikTok says the order was “issued without any due process” and would risk “undermining global businesses’ trust in the United States’ commitment to the rule of law.” (link)

August 9: TikTok reportedly plans to challenge the Trump administration ban. (link)

Oracle is also reportedly bidding for the TikTok sale. (link)

August 24: TikTok and ByteDance file their first lawsuit in federal court against the executive order, naming President Trump, Secretary of State Wilbur Ross and the U.S. Department of Commerce as defendants. The suit seeks to prevent the government from banning TikTok. Filed in U.S. District Court Central District of California (case number 2:20-cv-7672), it claims Trump’s executive order is unconstitutional.  (link)

TikTok reaches 100 million users in the U.S. (link)

August 27: TikTok CEO Kevin Mayer resigns after 100 days. (link)

Kevin Mayer (Photo by Jesse Grant/Getty Images for Disney)

Walmart says it has expressed interest in teaming up with Microsoft to bid for TikTok. (link)

August 28: China’s revised export laws could block TikTok’s divestment. (link)

September

China says it would rather see TikTok shuttered than sold to an American firm. (link)

September 13: Oracle confirms it is part of a proposal submitted by ByteDance to the Treasury Department in which Oracle will serve as the “trusted technology provider.” (link)

September 18: The Commerce Department publishes regulations against TikTok that will take effect in two phases. The app will no longer be distributed in U.S. app stores as of September 20, but it gets an extension on how it operates until November 12. After that, however, it will no longer be able to use internet hosting services in the U.S., rendering it inaccessible.  (link)

On the same day as the Commerce Department’s announcement, two separate lawsuits are filed against Trump’s executive order against TikTok. One is filed by ByteDance, while the other is by three TikTok creators.

The one filed by TikTok and ByteDance is in U.S. District Court for the District of Columbia (case number 20-cv-02658), naming President Trump, Secretary of Commerce Wilbur Ross and the Commerce Department as defendants. It is very similar to the suit ByteDance previously filed in California. TikTok and ByteDance’s lawyers argue that Trump’s executive order violates the Administrative Procedure Act, the right to free speech, and due process and takings clauses.

The other lawsuit, filed by TikTok creators Douglas Marland, Cosette Rinab and Alec Chambers, also names the president, Ross and the Department of Commerce as defendants. The suit, filed in the U.S. District Court for the Eastern District of Pennsylvania (case number 2:20-cv-04597), argues that Trump’s executive order “violates the first and fifth amendments of the U.S. Constitution and exceeds the President’s statutory authority.”

September 19: One day before the September 20 deadline that would have forced Google and Apple to remove TikTok from their app stores, the Commerce Department extends it by a week to September 27. This is reportedly to give ByteDance, Oracle and Walmart time to finalize their deal.

On the same day, Marland, Rinab and Chambers, the three TikTok creators, file their first motion for a preliminary injunction against Trump’s executive order. They argue that the executive order violates freedom of speech and deprives them of “protected liberty and property interests without due process,” because if a ban goes into effect, it would prevent them from making income from TikTok-related activities, like promotional and branding work.

September 20: After filing the D.C. District Court lawsuit against Trump’s executive order, TikTok and ByteDance formally withdraw their similar pending suit in the U.S. District Court of Central District of California.

September 21: ByteDance and Oracle confirm the deal but send conflicting statements over TikTok’s new ownership. TikTok is valued at an estimated $60 billion. (link)

September 22: China’s state newspaper says China won’t approve the TikTok sale, labeling it “extortion.” (link)

September 23: TikTok and ByteDance ask the U.S. District Court for the District of Columbia to grant a preliminary injunction against the executive order, arguing that the September 27 ban removing TikTok from app stores will “inflict direct, immediate, and irreparable harm on Plaintiffs during the pendency of this case.” (link)

September 26: U.S. District Court Judge Wendy Beetlestone denies Marland, Rinab and Chambers’ motion for a preliminary injunction against the executive order, writing that the three did not demonstrate “they will suffer immediate, irreparable harm if users and prospective users cannot download or update” TikTok after September 27, since they will still be able to use the app.

September 27: Just hours before the TikTok ban was set to go into effect, U.S. District Court Judge Carl J. Nichols grants ByteDance’s request for a preliminary injunction while the court considers whether the app poses a risk to national security. (link)

September 29: TikTok launches a U.S. election guide in the app. (link)

October

comedian Sarah Cooper's page is displayed on the TikTok app

WASHINGTON, DC – AUGUST 07: In this photo illustration, comedian Sarah Cooper’s page is displayed on the TikTok app. (Photo Illustration by Drew Angerer/Getty Images)

Snapchat launches a TikTok rival. (link)

TikTok says it’s enforcing actions against hate speech. (link)

TikTok partners with Shopify on social commerce (link)

October 13: After failing to win their first request for a preliminary injunction, TikTok creators Marland, Rinab and Chambers file a second one. This time, their request focuses on the Commerce Department’s November 12 deadline, which they say will make it impossible for users to access or post content on TikTok if it goes into effect.

October 30: U.S. District Judge Wendy Beetlestone grants TikTok creators Marland, Chambers and Rinab’s second request for a preliminary injunction against the TikTok ban. (link)

November

November 7: After five days of waiting for vote counts, Joe Biden is declared the president-elect by CNN, followed by the AP, NBC, CBS, ABC and Fox News. With Biden set to be sworn in as president on January 20, the future of Trump’s executive order against TikTok becomes even more uncertain.

November 10: ByteDance asks the federal appeal court to vacate the U.S. government’s divestiture order that would force it to sell the app’s American operations by November 12. Filed as part of the lawsuit in D.C. District Court, ByteDance said it asked the Committee on Foreign Investments in the United States for an extension, but hadn’t been granted one yet. (link)

November 12: This is the day that the Commerce Department’s ban on transactions with ByteDance, including providing internet hosting services to TikTok (which would stop the app from being able to operate in the U.S.), was set to go into effect. But instead the case becomes more convoluted as the U.S. government sends mixed messages about TikTok’s future.

The Commerce Department says it will abide by the preliminary injunction granted on October 30 by Judge Beetlestone, pending further legal developments. But, around the same time, the Justice Department files an appeal against Beetlestone’s ruling. Then Judge Nichols sets new deadlines (December 14 and 28) in the D.C. District Court lawsuit (the one filed by ByteDance against the Trump administration) for both sides to file motions and other new documents in the case. (link)

November 25: The Trump administration grants ByteDance a seven-day extension of the divestiture order. The deadline for ByteDance to finalize a sale of TikTok is now December 4.

This timeline will be updated as developments occur.

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