Supreme Court Backs Law Requiring TikTok to Be Sold or Banned
Supreme Court Backs Law Requiring TikTok to Be Sold or Banned The company argued that the law, which cited potential Chinese threats to the nation's security violated the First Amendment rights of the company and its 170 million users.
A unanimous Supreme Court on Friday upheld a law that effectively bans the wildly popular app TikTok in the United States starting on Sunday. The ruling ended, at least for now, a legal battle involving national security, free speech, and a cultural phenomenon with millions of Americans deliriously swiping their phone screens at any moment.
The decision-the ruling would prove a lethal blow to the company's United States operations- it would leave the app in tenebrous darkness if left under Chinese oversight. President-elect Donald J. Trump has pledged to "rescue" the app though what he might do remains unclear. He is inaugurated tomorrow.
In ruling against the app, however, the court acknowledged the huge cultural impact and sided with concerns from the government that China's role posed significant national security problems.
There is little doubt that for over 170 million Americans, TikTok provides a unique and sweeping platform for creative expression, a platform for interaction, and a source of community, according to the opinion of the court. But Congress has determined that divestiture is necessary to respond to its well-supported national security concerns about data collection practices associated with TikTok and its relation with a foreign adversary.
TikTok took a foothold in American culture in 2020 as a pandemic curiosity and grew fast into an undeniable juggernaut. It feeds short-form videos that are the number one source of information and entertainment for tens of millions of Americans, especially the younger ones.
It was not just celebrities and top-charting books, music, or films that the app enabled, but it has been a tool that shaped conversations about the war between Israel and Hamas, last year's U.S. presidential election, and a whole lot in between.
Although TikTok's lawyer told the justices last week that the app would "go dark" if it lost the case, it was unclear how quickly a shutdown would happen. At a minimum, app store operators like Apple and Google face significant penalties imposed by the law if they continue to distribute and update the TikTok app.
TikTok filed a First Amendment challenge to the law because the government failed to use even more modest measures for its security concerns. For instance, the company said, "Congress could have barred sending Americans' data abroad and required disclosure of China's role in formulating the app's algorithm.".
TikTok's parent company, ByteDance, also confirmed that the company is over half-owned by global institutional investors and there isn't any direct or indirect ownership stake of the Chinese government in TikTok or ByteDance.
But ByteDance has headquarters in Beijing and is controlled by China. The court also accepted the U.S. government's position that national security interests justified the law that required the sale or ban of TikTok.
The decision, rendered on an unprecedentedly short timeline, has few comparables in the history books of significant First Amendment precedents and in the far-reaching impact it will have. But the opinion also made clear that some of its conclusions are preliminary.
"We know the freshness of the technologies here, with their transformational potential," the opinion pointed out. "This new, scary context tells us to be cautious.".
Justices Sonia Sotomayor and Neil M. Gorsuch concurred in the judgment but disagreed with portions of the majority opinion.
The government had presented two rationales for the law: China's control of TikTok would enable it to harvest troves of private data and to spread covert disinformation. The court accepted only the first rationale-that the ownership structure of TikTok gives rise to unique and troubling concerns.
The majority thinks that this digital age is marked by data collection and analysis, but the scale of TikTok, its susceptibility to control by foreign adversaries, and the sheer swaths of sensitive data it collects justify differential treatment to alleviate the government's national security concerns.
Most felt it proper to give in to judgments made by congressional over national security, according to one reference from a decision in 2010 on a law that bans even benign aid given to terrorist groups.
We are aware that this statute comes into play in a setting in which 'national security and foreign policy concerns arise in connection with efforts to confront evolving threats in an area where information can be difficult to obtain and the impact of certain conduct difficult to assess,' the opinion stated. 'We thus afford the government's 'informed judgment' substantial respect here."
The ruling came days before Mr. Trump was to be inaugurated.
He has indicated his embrace of the application and is pursuing an executive order that may result in the reprieve of an impending ban for TikTok to continue operating in the United States. However, the law being contested leaves him less room to wriggle in as it limits the president from suspending it for 90 days only on the basis that he certifies to Congress substantial progress toward its sale documented by "relevant binding legal agreements".
Mr. Trump has other choices. He can instruct the Justice Department not to enforce the law at this moment. He can appeal to Congress, now controlled by Republicans, to pass new legislation. Or he can attempt to convince the owner, ByteDance, to comply with the law-by selling TikTok.
But that last option may not be available either: TikTok has been insisting that China would bar the export of ByteDance's algorithm.
The Supreme Court decision was expected, and everyone must respect it, Mr. Trump wrote on social media. My decision on TikTok will be made in the not-too-distant future, but I must have time to review the situation. Stay tuned!
Even as the Biden administration indicated the timing of the decision has left it up to the incoming administration to enforce the law, Attorney General Merrick B. Garland welcomed the ruling.
"Authoritarian regimes should not have unfettered access to millions of Americans' sensitive data," he said in a statement. "The court's decision affirms that this act protects the national security of the United States in a manner that is consistent with the Constitution."
People who make videos posted on TikTok, on the other hand, said the decision was a stinging financial blow.
"It's a huge source of how I make my living," said Riri Bichri, known for her 2000s nostalgia parody videos. "Everyone will have to adapt." Ms. Bichri makes money from brand deals, meaning companies pay her to promote them or their products on the app.
The lawyer for the Biden administration told the court that any ban did not need to be permanent when the case was argued last week and that TikTok could start operating again if it were sold after the deadline.
In court papers, however, the company said it would suffer significant harm from even a short-term disruption in service. If the platform goes dark on Jan. 19," its brief said, "TikTok will lose its users and creators in the United States. Many current and would-be users and creators — both domestically and abroad — will migrate to competing platforms, and many will never return even if the ban is later lifted."
Actually, another rival app, Xiaohongshu, was the top free app on Apple's US app store Tuesday. The platform, many call "Red Note," is used by more than 300 million people - nearly all in China.
President Biden signed the law last spring after it was enacted with wide bipartisan support. Lawmakers said the app's ownership represented a risk because the Chinese government's oversight of private companies allowed it to retrieve sensitive information about Americans or to spread covert disinformation or propaganda.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit in early December dismissed a challenge by TikTok, ByteDance, and some American users over the law which has been in dispute, as it ruled the measure was justifiable by the concern of national security. Judges somewhat differed on the reasoning while concurring with the government's argument that the Chinese government might use the website to harm the country's security.
READ MORE: Is it true that TikTok is getting banned?
Justice Sotomayor agreed that the Court should have seriously considered the First Amendment argument, but she would have voted to affirm the law, anyway.
Writing in his separate concurring opinion, Justice Gorsuch was pleased that the Court did not adopt the government's second justification, that divestment was necessary because China was somehow spreading disinformation.
"One man's 'covert content manipulation' is another's 'editorial discretion,'" he wrote. "Journalists, publishers, and speakers of all kinds routinely make less-than-transparent judgments about what stories to tell and how to tell them."
He added: "Speaking with and in favor of a foreign adversary is one thing. Allowing a foreign adversary to spy on Americans is another."
The government had filed classified materials in the appeals court to underpin its arguments. The Supreme Court said it was decided based only on what has been made public. Justice Gorsuch welcomed that, too.
"Efforts to inject secret evidence into judicial proceedings," he wrote, "present obvious constitutional concerns."
Bottom line, he wrote, "I am persuaded that the law before us seeks to serve a compelling interest: preventing a foreign country, designated by Congress and the president as an adversary of our nation, from harvesting vast troves of personal information about tens of millions of Americans.".
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