A unanimous Supreme Court on Friday upheld a law that effectively bans the wildly popular app TikTok in the United States from Sunday. The ruling ended, at least for now, a legal battle involving national security, free speech and a cultural phenomenon that has millions of Americans frantically swiping their phone screens at any given moment.
The ruling, which forces the app to go dark if it remains under Chinese control, could be a death blow to TikTok's U.S. operations. President-elect Donald J. Trump, who will be inaugurated the next day, has promised to “save” the app, although his mechanisms to do so remain unclear.
In its ruling against TikTok, the court recognized the app's broad cultural impact, but at the same time sided with the government's concerns that China's role would raise national security concerns.
“There is no doubt that TikTok provides a distinctive and expansive outlet for expression, means of engagement, and a source of community for more than 170 million Americans,” the court said. “But Congress has determined that divestiture is necessary to address well-founded national security concerns regarding TikTok's data collection practices and its relationship with a foreign adversary.”
TikTok took hold in American culture in 2020 as a pandemic curiosity and quickly grew into an undeniable juggernaut. It offers short videos that are a leading source of information and entertainment for tens of millions of Americans, especially young people.
Not only has the app spawned a new crop of celebrities and spawned top books, music and films, but it has also helped shape conversations around the Israel-Hamas war and last year's US presidential election.
Although TikTok's attorney told the justices last week that the app would “go dark” if the case were lost, it was not clear how quickly a shutdown would occur. At the very least, app store operators like Apple and Google face significant penalties imposed by law if they continue to distribute and update the TikTok app.
TikTok challenged the law on First Amendment grounds, saying the government should take more modest steps to address its security concerns. For example, the company said Congress could have banned the sending of U.S. data abroad and required disclosure of China's role in formulating the app's algorithm.
TikTok's parent company ByteDance has said that more than half of the company is owned by global institutional investors and that the Chinese government has no direct or indirect ownership interest in TikTok or ByteDance.
In accepting the government's arguments that Chinese control of TikTok's parent company poses a threat to the country's security, the court ruled that Congress had the right to give its owners a choice between selling it or effective ban.
The decision, delivered on an exceptionally abbreviated schedule, has few rivals in the annals of major First Amendment precedents and in the enormous practical impact it will have. But the opinion emphasized that some of the conclusions were preliminary.
“We are aware that the matters before us involve new technologies with transformative capabilities,” the opinion said. “This challenging new context requires caution on our part.”
Justices Sonia Sotomayor and Neil M. Gorsuch issued concurring opinions that agreed with the majority's principles but questioned some of its reasoning.
The government had offered two justifications for the law: that Chinese control of TikTok allowed the country to collect vast amounts of private data and spread classified disinformation. The court accepted only the first rationale, saying TikTok's ownership structure raised distinctive and troubling concerns.
“Collecting and analyzing data is a common practice in this digital age,” the majority said. “But TikTok's size and susceptibility to scrutiny by foreign adversaries, along with the vast amounts of sensitive data the platform collects, warrant differential treatment to address the administration's national security concerns.”
The majority said it was appropriate to delay Congress's national security rulings, citing a 2010 decision that upheld a law banning even benign support for terrorist organizations.
“We are aware that this law comes in a context where 'national security and foreign policy concerns arise in connection with efforts to address evolving threats in an area where information is difficult to obtain. can be difficult to obtain and the impact of certain behavior is difficult to estimate'. so the opinion. “We are therefore paying substantial respect here for the government's 'informed judgement'.”
The decision was made just days before Trump took office.
He has expressed support for the app and is exploring the possibility of an executive order that would allow TikTok to continue operating despite the impending ban. But the challenged law gives him limited room to maneuver because the president can only suspend the law for 90 days if he certifies to Congress that significant progress has been made toward a sale, documented in “relevant binding legal agreements.”
Mr. Trump has other alternatives. He could instruct the Justice Department not to enforce the law for the time being. He could push Congress, now controlled by Republicans, to enact new legislation. Or he could try to convince its owner, ByteDance, to comply with the law – by selling TikTok.
But the latter option may not be feasible, as TikTok has repeatedly argued that China would ban the export of ByteDance's algorithm.
“The Supreme Court's ruling was expected, and everyone should respect it,” Trump wrote on social media. “My decision about TikTok will be made in the not too distant future, but I need time to assess the situation. Stay informed!”
Although the Biden administration has indicated that the timing of the decision left it up to the new administration to enforce the law, Attorney General Merrick B. Garland welcomed the ruling.
“Authoritarian regimes should not have unfettered access to millions of sensitive US data,” he said in a statement. “The court's decision affirms that this law protects the national security of the United States in a manner consistent with the Constitution.”
In contrast, people who make videos posted to TikTok said the decision was a financial blow.
“It's a major source of how I make my money,” says Riri Bichri, known for her nostalgic parody videos from the 2000s. “Everyone will have to adapt.” Ms. Bichri makes money from brand deals, which means companies pay her to promote them or their products on the app.
When the case was argued last Friday, the Biden administration's lawyer told the court that a ban did not have to be permanent and that TikTok could start functioning again if it were sold after the deadline.
However, in court papers, the company said it would suffer serious damage even with a brief interruption of operations.
“If the platform becomes unavailable on January 19,” the letter said, “TikTok will lose its users and creators in the United States. Many current and potential users and creators – both domestic and international – will migrate to competing platforms, and many will never return even if the ban is later lifted.”
A rival platform, Xiaohongshu, was the most downloaded free app in Apple's US app store on Tuesday. More than 300 million people, mostly in China, use the app, which many Americans call “Red Note.”
President Biden signed the law last spring after it passed with broad bipartisan support. Lawmakers said ownership of the app posed a risk because the Chinese government's surveillance of private companies allowed it to extract sensitive information about Americans or spread classified disinformation or propaganda.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit in early December rejected an appeal of the law filed by TikTok, ByteDance and several U.S. users, ruling that the measure was justified due to national security concerns . The judges differed slightly in their reasoning, but agreed on the government's arguments that the Chinese government could exploit the site to harm national security.
In affirming that decision, the Supreme Court majority said it believed the law was subject to First Amendment scrutiny. Judge Sotomayor wrote in a unanimous opinion that the court should have found that such an investigation was applicable.
In his own opinion, Justice Gorsuch wrote that he was pleased that the court had not relied on the administration's second justification: that divestment was necessary to address potential Chinese disinformation.
“One person's 'covert manipulation of content' is another person's 'editorial discretion',” he wrote. “Journalists, publishers and speakers of all kinds routinely make less-than-transparent judgments about what stories to tell and how to tell them.”
He added: “Speaking with and on behalf of a foreign adversary is one thing. Allowing a foreign adversary to spy on Americans is another.”
The government had submitted classified information to the appeals court to support its arguments. The Supreme Court said its decision was based solely on public data. Judge Gorsuch was also pleased with that.
“Attempts to inject secret evidence into legal proceedings,” he wrote, “raise clear constitutional concerns.”
In essence, he wrote, “I am convinced that the bill before us seeks to serve a compelling interest: to prevent a foreign country, designated by Congress and the President as an adversary to our nation, from collecting vast amounts of personal information about dozens of of our nations. millions of Americans.”
Sapna Maheshwari And Madison Malone Kircher reporting contributed.
