
Supreme Court upholds TikTok ban
Kelsey Reichmann
WASHINGTON (CN) — The Supreme Court cleared the way for a looming ban on TikTok Friday, upholding lawmakers’ strong-arm tactics against the popular social platform’s Chinese ownership.
“There is no doubt that, for more than 170 million Americans, TikTok offers a distinctive and expansive outlet for expression, means of engagement, and source of community,” the court wrote in an unsigned opinion. “But Congress has determined that divestiture is necessary to address its well-supported national security concerns regarding TikTok’s data collection practices and relationship with a foreign adversary.”
The justices said Congress’ interest was based on foreign adversary control and content-neutral data collection — not speech. Emphasizing the narrowness of their ruling, the court said the TikTok ban should be treated as a special case.
“Data collection and analysis is a common practice in this digital age,” the court wrote. “But TikTok’s scale and susceptibility to foreign adversary control, together with the vast swaths of sensitive data the platform collects, justify differential treatment to address the government’s national security concerns.”
Without the justices’ intervention, a divest-or-ban law is set to take effect on Jan. 19, prohibiting companies like the China-based ByteDance, TikTok’s owner, from operating apps in the U.S.
In April, a bipartisan coalition of lawmakers passed the Protecting Americans from Foreign Adversary Controlled Applications Act, which prohibits any application controlled by a country the U.S. designates as a foreign adversary. According to Congress, the potential control over ByteDance wielded by the Chinese government presented a national security concern.
Under China’s 2017 National Intelligence Law, all organizations and citizens must cooperate with national intelligence efforts. In 2021, China enacted a data security law giving government authorities jurisdiction over data outside the Chinese mainland to preserve national security or investigate crimes.
ByteDance is incorporated in the Cayman Islands but the company owns subsidiaries in China. Global investors, employees and one of TikTok’s founders, Zhang Yiming, a Chinese national who lives in Singapore, all own shares of the app.
ByteDance disputed lawmakers’ claims concerning Chinese government access to user data, stating that the California-based TikTok Inc. operates the platform in the U.S. and the algorithm operates on U.S.-based Oracle servers.
TikTok claimed that the law violates the First Amendment by barring a U.S. company, TikTok Inc., from speaking and by withholding foreign speech from the 170 million Americans who use the social platform.
The D.C. Circuit upheld the law, finding it narrowly tailored to the government’s interest. TikTok resorted to the Supreme Court's emergency docket, facing an impending enforcement date at the start of 2025.
With almost exactly a month until the enforcement date, the Supreme Court scheduled an extremely rare argument session to review whether the popular app could be banned.
The Biden administration urged the justices to uphold the law, but the president-elect stepped into the fray, suggesting that his administration desired a different outcome.
Instead of applying the most stringent form of scrutiny used in similar cases, the court found that the divest or ban law satisfied intermediate scrutiny.
TikTok’s argument that China was unlikely to compel TikTok to turn over user data didn’t meet muster at the court. The justices said the congressional record reflects that China has engaged in extensive data collection on Americans.
“Even if China has not yet leveraged its relationship with ByteDance Ltd. to access U.S. TikTok users’ data, petitioners offer no basis for concluding that the government’s determination that China might do so is not at least a ‘reasonable inferenc[e] based on substantial evidence,'” the court wrote.
Justice Sonia Sotomayor, a Barack Obama appointee, broke from her colleagues on this argument. In a separate opinion, Sotomayor said the court should have applied strict scrutiny; however, she still thought the law survived TikTok’s First Amendment challenge.
Similarly, Justice Neil Gorsuch, a Donald Trump appointee, expressed reservations about whether intermediate scrutiny was appropriate. He said that litigation over the scrutiny tiers had taken on a life of its own, obscuring the constitutional question before the court.
Regardless of the scrutiny level, Gorsuch agreed that the ban should be upheld.
Gorsuch hesitated to offer a full-throated endorsement of the government’s stated national security concerns because the court only had a “fortnight” to resolve the consequential appeal.
While acknowledging that the ban was a dramatic response and questioning if the law would achieve its stated goal, Gorsuch said the government’s concerns seemed real and Congress’ response was constitutional.
“Speaking with and in favor of a foreign adversary is one thing,” Gorsuch wrote. “Allowing a foreign adversary to spy on Americans is another.”
President Joe Biden signaled an attempt to further delay TikTok’s ban earlier this week, and President-elect Trump has promised to “save” the app when he takes office next week. Either president can offer a 270-day delay if there is progress on a divestment deal. Biden and Trump have suggested telling the Justice Department not to enforce the law, but it’s not clear if that solution would be legally sound.