The US Supreme Court appears inclined to uphold a controversial law that could ban TikTok unless its Chinese parent company, ByteDance, divests its US operations.
During more than two hours of oral arguments on Friday, the justices questioned the balance between national security concerns and First Amendment protections, highlighting the complexity of the case ahead of the 19th January deadline for the law to take effect.
National Security at the Forefront
Solicitor General Elizabeth Prelogar, representing the US government, argued that ByteDance’s ties to the Chinese government pose a “grave” national security threat. She stated that Beijing could use TikTok’s extensive data collection to harm the United States, engaging in activities such as espionage, harassment, and recruitment.
“For years, the Chinese government has sought to build detailed profiles about Americans—where we live, who our friends and coworkers are, and what our interests and vices might be,” Prelogar told the court. She emphasised that TikTok’s immense dataset could provide China with a “powerful tool” for coercion and manipulation.
Conservative Justice Brett Kavanaugh underscored these concerns, stating that Congress and the President were alarmed by the potential for China to exploit TikTok to gather sensitive data on millions of Americans, including teenagers and young professionals who could later serve in critical national security roles.
Chief Justice John Roberts also pressed TikTok’s legal team, pointing out that Congress was not seeking to restrict speech but was instead targeting the corporate structure of a foreign-owned entity it had identified as a security risk. “They’re not fine with a foreign adversary gathering all this information about 170 million people who use TikTok,” Roberts said.
First Amendment Debate
TikTok and its supporters argue that the law violates the First Amendment by restricting the platform’s ability to operate freely in the US. Noel Francisco, TikTok’s attorney, asserted that the ban would effectively silence millions of users and stifle a key outlet for free expression.
However, the justices questioned whether the First Amendment applies in this case. Justice Elena Kagan noted that the law primarily targets ByteDance, a foreign corporation without First Amendment rights. Conservative Justice Neil Gorsuch expressed concern about the precedent the law could set, asking whether similar measures could be applied to foreign-owned newspapers. Yet, Prelogar countered that social media platforms differ significantly from traditional media, as users assume they are being shown content organically rather than through potential manipulation by a foreign government.
Uncertainty for TikTok
Unless the court intervenes, TikTok will face severe operational challenges starting 19 January. Francisco warned that the platform would likely “go dark,” as app stores would be required to remove it, and service providers would be prohibited from supporting it. While existing users could retain the app on their devices, it would no longer receive updates, potentially rendering it unusable over time.
Prelogar argued that the impending shutdown could serve as a necessary push for ByteDance to comply with the law by selling TikTok’s US operations. She described the situation as a “game of chicken” and insisted that the US should not “blink first.”
Divided Perspectives Among the Justices
While the court leaned towards supporting the government’s case, some justices expressed reservations. Justice Gorsuch questioned whether an outright ban was the most appropriate solution, suggesting that warning labels or disclaimers could address concerns without infringing on free speech. Kagan also highlighted historical instances, such as the Cold War, when the US allowed foreign propaganda to enter its borders without resorting to outright bans.
Nonetheless, the broader consensus among the justices appeared to favour deference to the government’s national security concerns, with Kavanaugh noting that such matters traditionally fall within the purview of Congress and the executive branch.
Political Dimensions
The case has taken on additional political significance as President-elect Donald Trump, who is set to return to office later this month, has called for a delay in the ban’s implementation. Trump has suggested pursuing a political solution, potentially involving negotiations with ByteDance. The court acknowledged its authority to issue an administrative stay, but Prelogar stressed that the law remains in effect unless explicitly overturned.
Justice Sonia Sotomayor cautioned against relying on potential non-enforcement by the incoming administration, warning that any company disregarding the law would still be in violation.
Implications for the Future
The Supreme Court’s decision, expected in the coming days, will have far-reaching consequences for TikTok, its users, and broader debates over the regulation of foreign-owned technology platforms. A ruling to uphold the ban could prompt other nations to reconsider their stance on TikTok and similar apps, potentially reshaping the global digital landscape.
For TikTok’s 170 million US users, the decision could mean losing access to one of the most popular social media platforms, while the outcome may also set a precedent for how governments address national security risks in the digital age. As the deadline looms, the tech world watches closely, awaiting a resolution that could redefine the balance between security, corporate interests, and individual rights.
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