During a Supreme Court hearing on Friday, the ongoing legal battle over the future of TikTok and its parent company ByteDance became the focal point of a complex and highly consequential discussion. The case centers around a law that mandates ByteDance to either divest TikTok or face a nationwide ban in the United States. Set to take effect on January 19, the law was enacted due to concerns about national security, particularly the fear that the Chinese government could potentially use TikTok to conduct surveillance or launch covert influence operations. In response, TikTok and ByteDance are seeking a delay in the law's implementation, arguing that it infringes upon the First Amendment, which protects free speech, by interfering with how a platform operated by a foreign entity interacts with American users.
Noel Francisco, who represents TikTok and ByteDance, took to the Supreme Court to warn that the law could set a dangerous precedent, not only for TikTok but for other foreign companies operating in the United States. He raised concerns that if this law were to be endorsed, it could embolden Congress to impose similar restrictions on other platforms. He argued that such actions could extend far beyond TikTok. For example, he pointed out that AMC movie theaters were once owned by a Chinese company, and under this logic, Congress could dictate the content shown in theaters or mandate censorship of certain films based on political or ideological considerations. Francisco's statement emphasized the potentially far-reaching implications of allowing Congress to regulate foreign businesses in such a manner, asserting that such precedents could create an environment where companies, even those operating in completely different sectors, could face arbitrary scrutiny or censorship based on the whims of lawmakers.
Despite Francisco's arguments, the justices on the Supreme Court appeared to lean in favor of upholding the law, even as some raised concerns about the First Amendment implications. The fundamental issue at stake is whether or not the government’s national security interests justify imposing such a drastic measure on TikTok, which boasts 170 million American users. Critics of TikTok have cited its ownership by a Chinese company as a potential vulnerability that could be exploited for surveillance, disinformation, or influence campaigns. This is the crux of the argument being made by the Biden administration, which has championed the law, asserting that ByteDance’s ownership of TikTok represents a clear and present risk to U.S. citizens’ privacy and security.
Jeffrey Fisher, a lawyer representing TikTok content creators, who are also challenging the law, pointed out the inconsistency in the government's approach. He questioned why Congress was focusing exclusively on TikTok while leaving other Chinese-owned platforms like Temu—an e-commerce site that has garnered millions of American users—unscathed. Fisher argued that if the government were truly concerned about the security risks posed by Chinese-owned platforms, they should take a broader approach, addressing all companies in the same category, rather than singling out TikTok alone. He highlighted the fact that Temu and other online platforms similarly gather data from millions of U.S. citizens, yet they have not been subject to the same scrutiny or regulatory action as TikTok. This raised an important question about the consistency of the U.S. government's stance on the issue, and whether its actions were based on genuine concerns about security, or politically motivated choices aimed at targeting specific platforms.
The Biden administration, on the other hand, is steadfast in its defense of the law. Solicitor General Elizabeth Prelogar, who argued on behalf of the government, emphasized the urgency of enforcing the divestiture deadline. Prelogar stated that foreign adversaries, such as the Chinese government, would not voluntarily relinquish control over a platform as influential as TikTok. According to Prelogar, the law’s implementation was necessary to force ByteDance to divest its stake in TikTok, a process that has already faced numerous delays. Prelogar suggested that this looming deadline could provide the “jolt” ByteDance needed to finally act on the divestiture, addressing concerns that the company has been dragging its feet on complying with U.S. demands.
Should the law go into effect, TikTok would no longer be available for download on major app stores like Apple’s App Store and Google Play, marking a significant disruption to the availability of the app in the U.S. While existing users would still have access to TikTok, the lack of updates, support, and critical infrastructure would likely result in the app becoming increasingly unreliable and eventually unusable. The company’s functionality could degrade over time, especially without the services and support needed to keep the app up to date with new features, bug fixes, and security patches. This could lead to a slow but inevitable decline in the app’s user base, as those relying on TikTok for entertainment, communication, or business purposes would likely be forced to seek alternatives.
In addition to the legal and constitutional considerations surrounding this case, the Supreme Court also debated the more substantive issue of whether TikTok’s potential use for covert influence campaigns or propaganda by the Chinese government warranted such an extreme action. This line of inquiry focused on the broader implications for national security, particularly in an era when social media platforms are powerful tools for information dissemination. The justices examined whether the national security threat posed by TikTok justified the measures taken by Congress and whether the government could impose such a sweeping action to limit the company’s operations in the U.S.
This case could set an important precedent not only for TikTok but for the future of foreign-owned platforms in the U.S. It raises questions about how far the government can go in regulating companies based on national security concerns, and whether such actions might have far-reaching consequences for the tech industry and the First Amendment. As the deadline for ByteDance’s divestiture approaches, the outcome of this case will have implications not just for TikTok, but for the broader tech landscape and the future of foreign investments in U.S. companies.
