The Supreme Court immediately put TikTok out of business in the US – at least temporarily – by upholding a law that will ban US app stores and hosting providers from offering services on the ByteDance-owned social platform starting Sunday.
The court’s justices agreed in the 20-page opinion that the provisions of the Protecting Americans from Applications Controlled by Foreign Adversaries Act targeting TikTok do not violate the First Amendment because they are “content neutral” by addressing who owns a speech platform, not what it is. said on it.
“They impose specific prohibitions on TikTok due to a foreign adversary’s control over the platform and make the sale a prerequisite for the platform’s continued operation in the United States,” the opinion said. “They don’t target a particular speech based on its content.”
The judges found compelling the government’s concerns about potential privacy abuses on TikTok, particularly if users enforce the TikTok app’s requests for contact and calendar data.
“Data collection and analysis is a common practice in this digital age,” the opinion said. “But TikTok’s scale and susceptibility to foreign adversary control, along with the vast amount of sensitive data the platform collects, justify different treatment to address the government’s national security concerns.”
The opinion, issued in an unsigned for curia basis, it does not address the government’s concerns about how the People’s Republic of China could use its authority over ByteDance to covertly manipulate content in ways that the PRC prioritizes.
Justices Sonia Sotomayor and Neil M. Gorsuch wrote brief concurring opinions.
Sotomayor partially dissented from the opinion in a three-paragraph concurrence, writing that TikTok’s “expressive activity” in choosing what users see, as well as “the right of TikTok creators to associate” with the publisher of choice they were both entitled to First Amendment protection.
Gorsuch praised his fellow justices in a longer concurrence for setting aside arguments of covert manipulation of the US government and classified evidence presented in the case. While wondering whether the law in question might not be as content-neutral as his colleagues thought it was, he concluded that the PRC’s ability to order around TikTok mattered more.
“Speaking to and for 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 significant threat to privacy or security and what the US government should do about it has been simmering for years. President Trump sought to ban the platform in August 2020, along with Chinese 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 fired employees spied on journalists reporting on the company in 2022. They have also argued that there is no room for ‘trusted TikTok given that it’s owners must answer to the Chinese Communist Party, which has a demonstrated love of collecting data on its citizens and, through widespread hacking of state sponsored, US residents.
(First PRC companies can also buy details about Americans from data brokers; even privacy experts try to keep their information out of those databases. But Congress has spent years failing to pass a bill comprehensive privacy policy or even one specifically aimed at data brokers.)
The argument over TikTok’s potential to be abused as a KKP propaganda channel has been even more hypothetical since 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 fact-checkers and welcome political content on Facebook and Instagram has rolled out a welcome mat for misinformation peddlers.
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TikTok itself attempted to address these concerns with a “Project Texas” plan to place its US operations behind a technological and legal firewall. This proposal also would have given the US government unprecedented authority over the platform, but the White House ultimately rejected it as unworkable.
This Supreme Court case began this spring when Congress passed the Protecting Americans from Controlled Applications by Foreign Adversaries 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 that is considered harmful to national security by the president.
The law made those provisions effective 270 days after its passage, which turned out to be January 19, unless ByteDance sells TikTok to a US buyer. It also allows the president to give TikTok a 90-day extension if he sees such a sale moving forward.
In December, a three-judge panel of the Court of Appeals for the District of Columbia District upheld the law, finding the government’s arguments about the potential dangers of data collection and the dissemination of propaganda sufficiently credible to overcome First Amendment concerns. and other arguments cited by TikTok and its fellow plaintiffs.
TikTok appealed it – gaining support from Trump’s lawyers who asked the court to stop the ban – but has now lost for the last time in the US courts. Technically, her fate now rests in the next 48 hours with President Biden, although the White House has said he will not implement the ban on Sunday, leaving the decision up to the incoming Trump administration. Trump has repeatedly vowed to “save” TikTok by unspecified means.
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About Rob Pegoraro
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