Shortly after Biden signed the bill banning TikTok in AprilThe company and a consortium of its users fought back with lawsuits accusing the federal government of violating their First Amendment rights. In December, a federal appeals court upheld the ban law, leaving TikTok with only one legal avenue to save itself: an appeal to the Supreme Court.
Many of these same arguments were made during Friday’s hearing. Justice Brett Kavanaugh called the government’s data security arguments “strong.” Justices Elena Kagan and Neil Gorsuch questioned the government’s claim that the app could host “covert” Chinese manipulation operations, arguing that TikTok’s algorithm was just as opaque as those owned by others 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 judges were not obligated to answer security-related questions, which would be better addressed by broader data privacy legislation.
“If Congress, in this same law, regulated data security in another way with data brokers, that is perfectly permissible,” Fisher told the court. “But the issue before you today was more limited. The question is: is this law before you viable for security reasons? And that answer must be no,” Fisher told the court.
The justices expressed doubts about whether the law actually limits TikTok’s free speech, given the option to divest. “TikTok can continue to operate on its own algorithm on its own terms, as long as it is not associated with ByteDance,” said Judge Ketanji Brown Jackson.
If the ban goes into effect, Apple and Google would be required to remove TikTok from the US versions of their app stores, prevent any new downloads from happening in the country. Internet hosting and data storage providers will also be prohibited from offering their services to the company. Users who have already downloaded TikTok on their devices may continue to have access to it, at least for a short period after the ban takes effect. Once removed from app stores, users will no longer be able to download TikTok updates and the app may become more buggy and difficult to use over time. TikTok’s lawyer told the judges that the app would no longer be available after January 19.
Blake Reid, a technology law professor at the University of Colorado at Boulder, said the justices appeared to target TikTok’s corporate structure, leaving the app’s lawyers little time to argue the merits of the case. data security argument. “I’m not sure TikTok will lose this argument, but because they spent a lot of time on it, they weren’t able to make the arguments on the issues of national security and privacy and security, which I think, are the weakest.
The justices seemed more sensitive to the government’s security concerns, says Alan Rozenshtein, a law professor and former national security adviser to the Justice Department. “It’s very plausible that Tiktok will get some votes,” Rozenshtein says. “I think the three most likely are Justices Sotomayor, Gorsuch and maybe Kagan, but I have a hard time seeing TikTok getting five votes, which it needs to overturn this law.”
At a news conference after Friday’s hearing, Francisco said the argument went “very well” and that the judges “vigorously questioned both sides.”
It’s unclear when the court will issue its decision, but Rozenshtein and Reid believe it will come sooner rather than later. TikTok lawyer Francisco suggested judges could issue a stay or injunction to prevent the ban from taking effect as planned, but they gave no sign as to whether they would consider it .
Trump also pleaded with the nation’s highest court to prevent the ban from going into effect in an amicus brief filed last month, promising to find a “political” solution to save TikTok once it has regained power. “President Trump single-handedly has the perfect negotiating expertise, electoral mandate, and political will to negotiate a resolution to save the platform while addressing national security concerns,” Trump’s lawyer wrote , D. John Sauer, in the deposit. The court has not yet responded to the brief.
If the judges uphold the ban, a deal with Trump could be TikTok’s last chance for survival.
