High Court Majority Appears Ready to Uphold TikTok Law

Congress and President Joe Biden supported the new law because of concerns about Chinese parent company ByteDance accessing private data of tens of millions of Americans, including young users, and using it to serve China’s geopolitical interests, said Justice Brett Kavanaugh: “That seems like a huge concern for the future of the country.”

Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Ketanji Brown Jackson and Elena Kagan offered skeptical remarks about ByteDance’s defense during oral argument Friday.

U.S. Solicitor General Lizabeth Prelogar said the Chinese government’s control of TikTok poses a “grave threat to national security.” ByteDance collects mass amounts of sensitive data about Americans, and can use it to create profiles that detail users’ relationships, interests and “vices,” she said: It’s a “powerful” tool for harassment, recruitment and espionage.

ByteDance attorney Noel Francisco, a former U.S. solicitor general under President Donald Trump, said he’s not disputing the data security risks, but the company is disputing how Congress chose to address the issue. For example, Congress could have passed a law saying TikTok and its U.S. employees can’t share sensitive data with ByteDance, China or anyone else under the threat of jail time and massive fines. Strict scrutiny under the First Amendment requires Congress to consider all options, and nothing in the record suggests lawmakers evaluated an alternative less drastic than banning TikTok, he said. "You’ve got to at least consider the most obvious alternative.”

Kagan agreed TikTok, an American company, has First Amendment rights. But she questioned how the law implicates those First Amendment rights if its target is ByteDance, a Chinese-owned company without the same rights. After divestment, TikTok can still choose to use whatever algorithm it wants, she said: “TikTok is going to suffer some pretty severe incidental effects [if the law is upheld], but they are incidental, aren’t they?”

App stores and web servers will be banned from doing business with TikTok if ByteDance isn’t divested by Jan. 19. President Joe Biden has the option to extend the deadline by 90 days. President-elect Donald Trump, who reversed course and recently has repeatedly defended the app, has asked the Supreme Court to halt the law from going into effect, allowing his administration to reach a “political resolution.” During his first term as president, Trump issued an executive order, which Biden later rescinded, banning U.S. transactions with ByteDance.

Jackson said TikTok can operate in the U.S. after divestiture and that the law as written targets the company’s association with ByteDance, not user speech. She noted comments from Kavanaugh and Justice Neil Gorsuch suggest there’s a “real problem” that China could use user data to advance its interests. The new law targets Chinese ownership, data manipulation and national security, said Thomas.

Jeffrey Fisher, an attorney arguing on behalf of TikTok content creator Brian Firebaugh, said the government can’t declare "national security" concerns and the case is over. He agreed that Kavanaugh's data security concerns are “compelling” but suggested the data security argument is tainted because the law also targets the company’s algorithm, which brings speech suppression into play. The question before the court is whether the law is sustainable on data security grounds, and the answer is no, he said. It violates the speech rights of users like Firebaugh because it explicitly says the company can’t use its ByteDance content recommendation algorithm in the future, he said. Creators have chosen to do business with TikTok because it has a superior algorithm, he said. The law is unconstitutional and should be sent back to Congress, which can then pass a data security law targeting TikTok, he added. The law doesn’t require TikTok to delete the data it owns, even after divestment, Fisher said: “It’s a very weird law if you’re just looking at it through a data security lens. Maybe Congress could do better.”

Senate Commerce Committee Chairman Ted Cruz, R-Texas, Sen. Marco Rubio, R-Fla., and Sen. Thom Tillis, R-N.C., told us Thursday they hope the law is upheld, despite Trump’s support for TikTok. “China needs to divest TikTok, and there’s a reason Congress overwhelmingly passed that legislation,” said Cruz. “The objective of the law is not to shut down TikTok. It is to force China to divest.” Said Rubio: “ByteDance controls the algorithm. If you control the algorithm, you have access to the data.” Tillis expressed “serious concerns” with the Chinese government: "I simply don’t trust them. TikTok has a future. It has a lot of value. There should be some way to deal with the ownership issues.” When Trump gets briefed on the issue, he will understand that divestment is in the long-term interests of the U.S., Tillis added.

Sens. Ed Markey, D-Mass., and Rand Paul, R-Ky., filed an amicus brief with Rep. Ro Khanna, D-Calif., on Thursday saying speculative national security concerns about the Chinese government abusing Americans’ data privacy aren’t enough to justify an unconstitutional law (see 2501090033).

Attorneys agreed that the court's conservative and liberal justices seemed to accept the government's argument that TikTok represents a national security threat because of the data it collects and the Chinese government's control of it. “It was always going to be an uphill battle” for TikTok, said Tech Freedom Policy Counsel Corbin Barthold on a Federalist Society panel after the hearing. At the U.S. Court of Appeals for the D.C. Circuit, a bipartisan panel of judges upheld the law, he noted.

Christian Corrigan, solicitor general of Montana, said during the Federalist panel that he now expects the court to issue a 9-0 or 8-1 decision upholding the law. If TikTok prevails, it will be on “a technicality,” such as a temporary stay, he said. Corrigan filed an amicus supporting the law, while Barthold said he opposes the law as being against the First Amendment.

The justices appeared sympathetic to the government’s arguments that “content manipulation” by TikTok is distinct from the editorial decisions of news and media companies, Barthold said. “If the justices accept that, that it is a distinct thing from editorial control, TikTok is dead in the water,” he said. Corrigan and Barthold said the most likely outcome was for the justices to rule narrowly on the national security concerns. TikTok's relationship with the Chinese government “gives you enough to cabin it off” from the content issues, Corrigan said. A decision that delves into the content manipulation arguments raised in the case could have First Amendment consequences down the road, Barthold said. “We have to be careful that we’re not picking up tools to beat the CCP that will be then lying around again for future cases.”