Soon after Biden signed a bill to ban TikTok in April, the company and a consortium of its users retaliated by filing lawsuits accusing the federal government of violating their First Amendment rights. In December, a federal appeals court upheld the ban, leaving TikTok with only one legal way to save itself: an appeal to the Supreme Court.
Many of the same arguments were raised in Friday’s meeting. Justice Brett Kavanagh called the government’s data security rationale “strong.” Justices Elena Kagan and Neil Gorsuch questioned the government’s claim that the app could host a “covert” Chinese manipulation operation, arguing that TikTok’s algorithm is as opaque as those of other social media companies.
“Now we all know China is behind it,” Kagan said.
Fisher, who is representing the manufacturers involved in the case, argued that judges don’t have to answer questions about security, which are better addressed by broader data privacy laws.
“If Congress, in the same statute, regulates data security in other ways with data intermediaries, that’s perfectly permissible,” Fisher told the court. But the question before you today was much more limited. The question is, is this law in front of you sustainable for security reasons? The answer must be no, Fisher told the court.
The judges were skeptical about whether the law would actually limit TikTok’s freedom of expression given the divestment option. “TikTok can operate on its own algorithms, as long as it’s not linked to ByteDance,” Judge Katanji Brown Jackson said.
If the ban goes into effect, Apple and Google would have to remove TikTok from the US versions of their app stores and block any new downloads in the country. Internet hosting and data storage service providers will also be prohibited from providing their services to this company. Users who have already downloaded TikTok to their devices may still be able to access it, at least for a short time after the ban goes into effect. Once removed from app stores, users will not be able to download TikTok updates, and the app may become more buggy and harder to use over time. TikTok’s lawyer told the judges that the app will go dark after January 19.
Blake Reed, a technology law professor at the University of Colorado at Boulder, said the judges appeared to be targeting TikTok’s corporate structure, giving the app’s counsel little time to argue the merits of the data security argument. I’m not sure Tiktok misses this argument, but because they spent so much time on it, they couldn’t discuss national security issues and privacy and security issues, which I think is the weakest. It is part of the government’s case.”
Judges appear to be more sympathetic to government security concerns, says Alan Rosenstein, a law professor and former Justice Department national security adviser. “It’s very likely that Tiktok will get a few votes,” says Rosenstein. “I think the three most likely would be Justices Sotomayor, Gorsuch and maybe Kagan, but I’m pushing for TikTok to get the five votes it needs to overturn this rule.”
At a press conference after Friday’s hearing, Francisco said the argument went “really well” and the justices “extremely questioned both sides.”
It’s unclear when the court will issue its decision, but Rosenstein and Reid believe it will be sooner rather than later. TikTok’s lawyer, Francisco, suggested that judges could issue a stay or injunction to prevent the ban from being implemented as planned, but they gave no indication whether they would consider it.
Trump also asked the nation’s highest court to block the ban in a brief amicus brief filed last month, vowing to find a “political” solution to save TikTok after the takeover. D. “President Trump alone has the complete deal-making expertise, electoral authority, and political will to negotiate a resolution to save the platform while addressing national security concerns,” Trump’s attorney John Sauer wrote in the filing. The court has not yet responded to this report.
If the judges uphold the ban, the deal with Trump could be Tic Tac’s last shot at survival.
