Right after Biden signed a bill banning TikTok in Aprilthe company and a group of users retaliated by filing a lawsuit accusing the federal government of violating their First Amendment rights. In December, federal appeals court upheld the ban, leaving TikTok with only one legal path to save itself: appeal to the Supreme Court.
Many similar arguments were made at Friday's hearing. Justice Brett Kavanaugh called the government's data security rationale “strong.” Justices Elena Kagan and Neil Gorsuch questioned the government's assertion that the app could host “secret” Chinese manipulations, arguing that TikTok's algorithm is as opaque as its algorithm. accounting of other social media companies.
“We all know now that China is behind this,” Kagan said.
Fisher, who represents the creators involved in the case, argued that the justices should not have to answer privacy-related questions, which would be better addressed by broad data privacy laws than.
“If Congress, in this very law, regulates data security in ways that are different from data brokers, then that is absolutely permissible,” Fisher told the court. “But the question before you today is narrower. The question is whether this law is sustainable for security reasons? And that answer has to be no,” Fisher told the court.
The justices expressed some doubts about whether the law would actually limit TikTok's free speech rights given the divestment option. “TikTok can continue to operate under its own algorithm on its own terms, as long as it does not involve ByteDance,” said Judge Ketanji Brown Jackson.
If the ban goes into effect, Apple and Google will have to remove TikTok from their app store versions in the US, prevent any new downloads from taking place in the country. Internet data storage and hosting service providers will also be prohibited from providing their services to the company. Users who have downloaded TikTok onto their devices can continue to have access, at least for a short period of time after the ban takes effect. Once removed from the app store, users will not be able to download updates to TikTok and the app may become more buggy and harder to use over time. TikTok's lawyers told the judges that the app will shut down after January 19.
Blake Reid, a technology law professor at the University of Colorado at Boulder, said that the justices appeared to target TikTok's corporate structure, which gave the app's counsel little leeway to argue over its merits. The value of the data security argument. “I'm not sure Tiktok will lose that argument, but because they've spent so much time on it, they're not making any arguments about national security and privacy and security, which which I think is the weakest. part of the government's case.”
Alan Rozenshtein, a law professor and former Justice Department national security adviser, said the justices seemed more sympathetic to the government's security concerns. “It makes a lot of sense for Tiktok to win a few votes,” Rozenshtein said. “I think the three most likely are justices Sotomayor, Gorsuch and maybe Kagan, but I fight to see TikTok get five votes, which is what they need to repeal this law.”
In a news conference after Friday's hearing, Francisco said the argument went “really well” and that the justices “questioned both sides vigorously.”
It's unclear when the court will make a decision, but Rozenshtein and Reid believe it will come sooner rather than later. TikTok's lawyer, Francisco, suggested that judges could issue a temporary restraining order or injunction to give the ban its intended effect, but they gave no signal on whether they would consider it. or not.
Trump also pleaded with the nation's highest court to block the ban from taking effect in an amicus brief filed last month, promising to find a “political” solution to save TikTok once he regains power. force. “President Trump alone possesses the outstanding negotiating expertise, electoral mandate and political will to negotiate a solution that saves the foundation while addressing national security concerns,” Trump lawyer D. John Sauer wrote in filing. The court has not yet responded to the brief.
If the judges uphold the ban, the deal with Trump may just be TikTok's last shot at survival.