The U.S. Supreme Court did not make a decision on whether TikTok’s looming ban from the States can be overturned on Friday, with the Supreme Court adjourning until Monday morning. But based on comments from several justices, they do not appear inclined to reverse the law imposing the ban.
The popular app, which boasts 170 million American users, is set to be removed from the U.S. on Jan. 19.
Last April, President Joe Biden signed a law that called for TikTok to be banned unless ByteDance, the app’s Beijing-based parent company, sold its American operation. The chief concern U.S. lawmakers say they have with TikTok is that it could double as a spyware app for the Chinese government; TikTok, per Chinese law, is required to share user data with China’s communist government, if asked to do so.
TikTok has said on multiple occasions that the law tramples on the free expression rights of the company and its 170 million American users that are granted by the First Amendment.
Justice Clarence Thomas on Friday did not seem to buy that argument, asking “exactly what is TikTok’s speech here?” He then asked why restricting ByteDance, which is a Chinese company, would limit TikTok users in the U.S.
Noel Francisco, a lawyer for TikTok and ByteDance, said that if ByteDance were to sell TikTok’s U.S. business, the app would not be able to leverage ByteDance’s algorithm and it would thus negatively affect American users. It would also violate TikTok’s First Amendment rights, he said.
“That’s a direct burden on TikTok’s speech,” Francisco said.
The Supreme Court in December agreed to hear arguments from TikTok on why it should not be banned after a lower court denied the company’s request to review its pending removal.
On Friday, Justice Brett Kavanaugh reiterated that Congress and President Biden were worried China’s government could easily access the data of American users. Ultimately, that data could be used to blackmail users and potentially turn some users into foreign assets, he supposed.
“Is that not a realistic assessment by Congress and the president of the risks here?” Kavanaugh asked.
Francisco countered that the concern is overblown. He said American user data is held on Oracle servers in Virginia. Still, he acknowledged there are “risks” involved with ByteDance’s cozy relationship with China’s government.
“I certainly acknowledge the risk, but I think there are lots of reasons why that risk still can’t justify the law,” he added.
The law banning TikTok, Francisco continued, should at least be postponed so Congress could look at alternative measures, like imposing “massive” fines for TikTok workers who share American data.
As TheWrap previously reported, most Americans have not shown much concern about China’s government having easy access to their data. And in September, a Pew Research Center survey showed only 32% of Americans favored a government ban of TikTok.
For years, TikTok has denied it shares American user data with China’s government. CEO Shou Zi Chew testified before Congress in March 2023 that ByteDance is “not an agent of China” and has never shared American user data with China’s government.
“The bottom line is this: American data stored on American soil, by an American company, overseen by American personnel,” he said.
That turned out to be false.
Only a few months later, Forbes reported the “sensitive financial data” of some of TikTok’s biggest U.S. creators had been stored in China and was accessible by ByteDance employees, including social security numbers and tax IDs. TikTok eventually conceded that some U.S. users had their data stored in China after all.
A potential TikTok ban has been lingering for several years now. Donald Trump first proposed removing the app from the U.S. during his first term in office, before Congress ultimately passed the law banning the app last year.
Despite his initial support, Trump has since changed his tune on banning TikTok, saying last year that he would like to “save” the app. And in December, Trump reiterated he would like to keep TikTok in the U.S. He said he’d “take a look” at saving TikTok, noting he had a “warm spot” in his heart for it because it helped get young people to vote for him.
On Friday, Justice Sonia Sotomayor noted that if president-elect Trump chose to not enforce the ban that it would be a violation of law.
“Whatever the new president does doesn’t change that reality” Sotomayor said about the ban, if it remains in place.
