US Supreme Court Likely To Uphold Law Forcing TikTok Sale

All nine Supreme Court justices expressed deep skepticism of arguments made by the social media company TikTok on Friday that a law forcing its Chinese parent company to sell its U.S. subsidiary would unconstitutionally violate its free speech rights.

At issue is a bipartisan law passed by Congress and signed by President Joe Biden that would prevent app stores from carrying TikTok or updates to the existing app unless ByteDance, the Chinese parent company, sells its U.S. subsidiary TikTok Inc. to a person or entity not controlled by the laws of a foreign adversary nation. ByteDance has stated that it will not sell its U.S. subsidiary, and TikTok Inc. states that it will shut down if the law goes into effect Jan. 19.

The case pits questions of national security and data protection against free speech protected by the First Amendment. When Congress passed the law, lawmakers expressed concerns that the Chinese government could use TikTok to either manipulate the American public or use the vast data it has collected from the 170 million American users, including direct messages, to blackmail, coerce or recruit individual Americans who may join the military or serve in government positions in the future. Chinese law, which has jurisdiction over ByteDance, could require companies to hand over data to government intelligence services. 

TikTok lawyer Noel Francisco argued that the law unconstitutionally burdened the speech rights of the U.S. corporation TikTok by seeking to prevent it from using ByteDance’s algorithm and by raising concerns about potential content manipulation.

“One thing is clear, it’s a burden on TikTok’s speech, so the First Amendment applies,” Francisco said. “The act is content-based from beginning to end. It applies only to social media platforms that have user-generated content except for business, product and travel reviews.”

While the justices believed that there were First Amendment issues presented in the case, none of them — liberal or conservative — appeared to buy this argument alone. They noted that the law targets ByteDance, a foreign corporation subject to Chinese laws, which does not have First Amendment protection.

“You’re converting the restriction on ByteDance’s ownership and the algorithm into a restriction on TikTok’s speech,” Justice Clarence Thomas said in response to Francisco’s argument.

“Are we supposed to ignore the fact that the ultimate parent is, in fact, subject to doing intelligence work for the Chinese government?” Chief Justice John Roberts asked.

Francisco disputed that ByteDance had ultimate control over TikTok but acknowledged that for TikTok to continue operating in the U.S. it needed to use the algorithm controlled by ByteDance and to transmit user data to ByteDance in order to maintain and update that algorithm.

Data security was one of the chief reasons given by Congress for enacting the law targeting TikTok and central to the arguments before the court. The Chinese government has engaged repeatedly in the illegal collection of sensitive data on Americans: It hacked the Office of Personnel Management in 2015 to get information on 20 million federal government workers and obtained the financial data of 145 million Americans by hacking the credit scoring company Equifax in 2017. The greatest concern the government presented to the court is that users, in particular younger users, could be subject to blackmail or espionage recruitment if they obtain positions in the military or government in the future.

“Data collection that seems like a huge concern for the future of the country,” Justice Brett Kavanaugh said.

Francisco conceded the real risk of data collection and interest for the government, but insisted the First Amendment considerations should outweigh that. He also argued Congress did not consider less restrictive alternatives to divestiture such as mandating disclosures about data security and content manipulation.

To make his point that speech rights were at the core of the case, Francisco repeatedly stated that the law would force TikTok to shut down in the U.S. on Jan. 19. Some of the justices rebutted this argument.

“You keep saying shut down. The law doesn’t say TikTok has to shut down. It says ByteDance has to divest. If ByteDance divested TikTok, we wouldn’t be here, right?” Justice Amy Coney Barrett said.

When it came time for Solicitor General Elizabeth Prelogar to defend the law, the justices appeared to press her on the finer points and distinctions in her argument as they crafted what appears likely to be their own reasoning for upholding the law.

Justice Elena Kagan pressed Prelogar on the meaning and importance of the threat of potential “covert” content manipulation on TikTok by the Chinese government that the U.S. claimed as a reason for forcing the app’s sale. Nonplussed by this argument, Kagan forced Prelogar to pivot to the stronger justification of data security.

The operation of TikTok requires a “wealth of data about Americans” to go back to China, creating a “gaping vulnerability” since the Chinese government can force ByteDance to hand over that data, Prelogar said. She added that ByteDance had already come under investigation for accessing TikTok for Americans’ data in order to surveil U.S. journalists.

ByteDance says it will not sell TikTok if the law is upheld. Instead, it will shut the platform down Jan. 19. Of course, TikTok could return if ByteDance reaches a deal in the future to sell the platform. The president is able to suspend the law’s application to TikTok only when such a deal is reached.