US Supreme Court looks likely to uphold TikTok ban on security grounds

The US Supreme Court appears likely to uphold a law that would ban the video streaming site TikTok in the United States unless it is by its China-based parent company.

The justices seemed persuaded by arguments that the national security threat posed by the company’s connections to China override concerns about restricting the speech either of TikTok or its 170 million users in the US.

Early in arguments that lasted more than two and a half hours, Chief Justice John Roberts identified his main concern: TikTok’s ownership by China-based ByteDance and the parent company’s requirement to cooperate with the Chinese government’s intelligence operations.

If left in place, the law passed by bipartisan majorities in Congress and signed by President Joe Biden in April will require TikTok to ‘go dark’ on 19 January, lawyer Noel Francisco told the justices on behalf of TikTok.

Francisco urged the justices to enter a temporary pause that would allow TikTok to keep operating.

“We might be in a different world again” after President-elect Donald Trump takes office on 20 January, he said.

Trump, who has 14.7 million followers on TikTok, has also called for the deadline to be pushed back to give him time to negotiate a “political resolution”.

But it was not clear whether any of the justices would choose this course.

One justice looks set to side with TikTok

Only Justice Neil Gorsuch sounded like he would side with TikTok to find that the ban violates the Constitution.

Gorsuch labelled arguments advanced by the Biden administration in defence of the law a “paternalistic point of view”.

TikTok, he said, has offered to post a warning that the content could be manipulated by the Chinese government.

“Don’t we normally assume that the best remedy for problematic speech is counter speech?” he asked Solicitor General Elizabeth Prelogar, who defended the law for the Biden administration.

But a warning wouldn’t be enough to counterbalance the spread of misinformation, Prelogar said.

Francisco and lawyer Jeffrey Fisher, representing content creators and TikTok users, repeatedly tried to focus the court on the First Amendment restrictions that would fall on TikTok and its users, imperilling the livelihood of content creators if the law is allowed to take effect.

But compared to the mildly challenging questions directed to Prelogar, they faced scepticism from every justice other than Gorsuch.

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Justice Brett Kavanaugh raised US concerns about China accessing information on tens of millions of Americans, including teenagers and people in their 20s, with whom TikTok is extremely popular.

“That seems like a huge concern for the future of the country,” said Kavanaugh.

Roberts downplayed Fisher’s argument that banning TikTok violates American users’ free speech rights.

“Congress is fine with the expression,” Roberts said. “They’re not fine with a foreign adversary, as they’ve determined it is, gathering all this information about the 170 million people who use TikTok”.

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ByteDance has said it won’t sell the short-form video platform and Francisco said a sale might never be possible under the conditions set in the law.

If TikTok isn’t sold to an approved buyer, the federal law would prohibit app stores, such as those operated by Apple and Google, from offering the app. It would also bar internet hosting services from hosting TikTok.

TikTok users who already have the app on their phones will continue to have access to it. But new users won’t be able to download the app and existing ones will no longer be able to receive updates.

That will eventually render the app unworkable, the Justice Department has said in court filings.

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TikTok, meanwhile, has been ‘on notice’ since 2020, during Trump’s first term, that its sale could be required if it couldn’t satisfy the US government’s national security concerns.

National security threat

The federal law was the culmination of a years-long saga in Washington over TikTok, which the government sees as a national security threat due to its connections to China.

US officials argue that the vast amounts of user data that TikTok collects, including sensitive information on viewing habits, could fall into the hands of the Chinese government through coercion.

They also are concerned that the proprietary algorithm that fuels what users see on the app is vulnerable to manipulation by Chinese authorities, who could pressure ByteDance to shape content on the platform in a way that’s difficult to detect.

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TikTok, which sued the government last year over the law, has long denied it could be used as a tool of Beijing.

The company negotiated with the Biden administration between 2021 and 2022 to resolve the concerns around US data privacy and potential algorithmic manipulation.

In court documents, it has accused the administration of essentially walking away from those negotiations after it presented a draft agreement in August 2022.

But the Justice Department has said the Biden administration concluded the proposal was “insufficient” because it would maintain TikTok’s ties to China.

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The agency said the Executive Branch also could “neither trust ByteDance to comply nor detect noncompliance before it was too late”.

The Supreme Court justices are expected to act on this case within days, almost certainly ahead of the January 19 deadline.