The Supreme Court put TikTok imminently out of business in the US—at least temporarily—by upholding a law that will ban US app stores and hosting providers from providing services to the ByteDance-owned social platform starting Sunday.
The court’s justices agreed in the 20-page opinion that the Protecting Americans from Foreign Adversary Controlled Applications Act’s provisions targeting TikTok do not infringe on the First Amendment because they are “content-neutral” by virtue of addressing who owns a speech platform, not what’s said on it.
“They impose TikTok-specific prohibitions due to a foreign adversary’s control over the platform and make divestiture a prerequisite for the platform’s continued operation in the United States,” the opinion reads. “They do not target particular speech based upon its content.”
The justices found the government’s concerns over potential privacy abuses at TikTok persuasive, especially if users oblige the TikTok app’s requests for contacts and calendar data.
“Data collection and analysis is a common practice in this digital age,” the opinion reads. “But TikTok’s scale and susceptibility to foreign adversary control, together with the vast swaths of sensitive data the platform collects, justify differential treatment to address the Government’s national security concerns.”
The opinion, issued on an unsigned per curiam basis, does not address government concerns over how the People’s Republic of China could leverage its authority over ByteDance to manipulate content covertly in ways that the PRC prioritizes.
Justices Sonia Sotomayor and Neil M. Gorsuch wrote brief concurring opinions.
Sotomayor partially disagreed with the opinion in a three-paragraph concurrence, writing that TikTok’s “expressive activity” in choosing what users see as well as TikTok creators’ “right to associate” with the publisher of their choice were both entitled to First Amendment protection.
Gorsuch complimented his fellow justices in a longer concurrence for setting aside the US government’s covert manipulation arguments and classified evidence submitted in the case. While wondering if the law in contention might not be as content-neutral as his colleagues held it to be, he concluded that the PRC’s ability to order around TikTok mattered more.
“Speaking with and in favor of a foreign adversary is one thing,” Gorsuch wrote. “Allowing a foreign adversary to spy on Americans is another.”
The argument over whether TikTok poses a meaningful privacy or security threat and what the US government should do about it has been stewing for years. President Trump sought to ban the platform in August 2020, along with the Chinese all-purpose messaging app WeChat, but lost multiple court challenges.
On the privacy front, opponents have pointed to past episodes of TikTok violating its users’ privacy, such as when since-fired employees spied on journalists reporting on the company in 2022. They have also argued that there’s no room to trust TikTok given that its owners must answer to the Chinese Communist Party, which has a demonstrated fondness for harvesting data on its own citizens and, via extensive state-sponsored hacking, US residents.
(PRC front companies could also just buy details about Americans from data brokers; even privacy experts struggle to keep their info out of those databases. But Congress has spent years failing to pass a comprehensive privacy bill or even one targeting data brokers specifically.)
The argument over TikTok’s potential to be abused as a CCP propaganda channel has been even more hypothetical since so much of its recommendation algorithm remains a mystery. Meanwhile, the Trump campaign found its potential as a political marketing tool powerful enough to join the platform last summer. More recently, Meta’s decision to fire its fact-checkers and welcome political content on Facebook and Instagram has put out a welcome mat for disinformation merchants.
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TikTok itself attempted to address these concerns with a “Project Texas” plan to put its US operations behind a technological and legal firewall. This proposal also would have given the US government unprecedented kill-switch authority over the platform, but the White House eventually declined that as unworkable.
This Supreme Court case kicked off this spring when Congress passed the Protecting Americans from Foreign Adversary Controlled Applications Act, which President Biden signed into law as part of a supplemental-spending bill (PDF).
That statute prohibits US app stores and online hosting services from transacting with TikTok, other platforms owned by its Beijing-based parent firm ByteDance, and any other platform under the control of a “foreign adversary” and deemed harmful to national security by the president.
The law put those provisions in force 270 days after its passage, which turned out to be Jan. 19, unless ByteDance divests TikTok to a US buyer. It also allows the president to give TikTok a 90-day deadline extension if he sees such a divestiture moving along.
In December, a three-judge panel of the Court of Appeals for the District of Columbia Circuit upheld the law, finding the government’s arguments of possible data-collection and propaganda-dissemination risks sufficiently plausible to outweigh First Amendment concerns and other arguments cited by TikTok and its fellow plaintiffs.
TikTok appealed that—drawing support from Trump’s lawyers who asked the court to pause the ban—but has now lost for the last time in US courts. Technically, its fate now rests over the next 48 hours with President Biden, though the White House has said he won’t enforce the ban come Sunday, punting the decision to the incoming Trump administration. Trump has repeatedly pledged to “save” TikTok by unspecified means.
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