Shortly after Biden signed the bill to ban TikTok in April, the company and a consortium of its users retaliated by filing 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 presented 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 claim that the app could host “covert” Chinese manipulation operations, arguing that TikTok’s algorithm was as opaque as those of other social media companies.
“Now we all know that China is behind this,” Kagan said.
Fisher, who represents the creators involved in the case, argued that the judges did not have to answer questions related to security, which would be better resolved by broader data privacy legislation.
“If Congress, in this same law, regulated data security in other ways with data brokers, that is perfectly permissible,” Fisher told the court. “But the question before you today was more specific. The question is: is the law before you sustainable for security reasons? And that answer has to be no,” Fisher told the court.
The justices expressed some doubt about whether the law actually limits TikTok’s free speech, given the option to divest. “TikTok can continue to operate 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 will have to remove TikTok from the US versions of their app stores, preventing new downloads from being made 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 can still continue to have access, at least for a short period of time after the ban goes into effect. Once removed from app stores, users will not be able to download TikTok updates and the app could become more buggy and difficult to use over time. TikTok’s lawyer told judges that the app would stop working after January 19.
Blake Reid, a technology law professor at the University of Colorado at Boulder, said the judges seemed to take aim at TikTok’s corporate structure, leaving the app’s lawyer little time to argue the merits of the data security argument. “I’m not sure Tiktok will lose that argument, but because they spent so much time on it, they couldn’t make arguments on national security and privacy and security issues, which I think are the weakest.” part of the government’s case.”
The judges seemed more sympathetic to the government’s security concerns, says Alan Rozenshtein, a law professor and former national security adviser at the Justice Department. “It’s very possible that Tiktok will get a couple of votes,” says Rozenshtein. “I think the three most likely are Justices Sotomayor, Gorsuch and maybe Kagan, but I have a hard time seeing TikTok get five votes, which is what 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 “strongly 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 that judges could issue a stay or injunction to prevent the ban from taking effect as planned, but gave no indication whether they would consider it.
Trump also pleaded with the nation’s highest court to prevent 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. “Only President Trump possesses the consummate deal-making experience, the electoral mandate, and the political will to negotiate a resolution that saves the platform while addressing national security concerns,” wrote Trump attorney D. John Sauer, in the presentation. 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.