US Supreme Court upholds TikTok ban, but Trump might offer lifeline

The Supreme Court ruled Friday that a controversial ban on TikTok may take effect this weekend, rejecting an appeal from the popular app’s owners that claimed the ban violated the First Amendment.

The court handed down an unsigned opinion and there were no noted dissents.

The decision, which followed warnings from the Biden administration that the app posed a “grave” national security threat because of its ties to China, will allow the ban to start Sunday. But there are a lot of lingering questions about how the ban would work in practice because there’s no precedent for the US government blocking a major social media platform. And how exactly the government would enforce it remains unclear.

In its opinion, the Supreme Court acknowledged that for 170 million Americans TikTok offers “a distinctive and expansive outlet for expression, means of engagement, and source of community.”

But the court said, Congress was focused on national security concerns and that, the court said, was a deciding factor in how it weighed the case.

“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 court wrote.

Trump tells CNN: ‘I’ll be making the decision’

The ruling also puts the spotlight on President-elect Donald Trump, who spoke with CNN’s Pamela Brown after the decision came down.

“It ultimately goes up to me, so you’re going to see what I’m going to do,” Trump said.

Asked if he would take measures to try and reverse the pending ban, Trump said he’ll “be making the decision.”

“Congress has given me the decision, so I’ll be making the decision.”

Trump also confirmed he had a conversation with Chinese President Xi Jinping, saying they had “a great talk about TikTok and a great talk about many other subjects.”

The court, however, noted that Trump once wanted to ban TikTok.

“President Trump determined that TikTok raised particular concerns, noting that the platform ‘automatically captures vast swaths of information from its users’ and is susceptible to being used to further the interests of the Chinese government,” the court wrote.

In the runup to the ban’s effective date, President Joe Biden’s administration signaled it would leave enforcement of the ban to Trump, who will be inaugurated on Monday. Despite that, TikTok has said it may “go dark” when the ban takes effect.

“President Biden’s position on TikTok has been clear for months, including since Congress sent a bill in overwhelming, bipartisan fashion to the President’s desk: TikTok should remain available to Americans, but simply under American ownership or other ownership that addresses the national security concerns identified by Congress in developing this law,” White House press secretary Karine Jean-Pierre said in a statement.

“Given the sheer fact of timing, this administration recognizes that actions to implement the law simply must fall to the next administration, which takes office on Monday,” she added.

TikTok CEO Shou Chew is set to be seated on the dais, alongside other leading tech CEOs, at Trump’s inauguration — perhaps a sign of just how serious the incoming president is about trying to save the app.

And with some in Congress now suggesting that TikTok might need more time to find a buyer, Trump could find support in trying to push off the ban to a later date.

The law gives the president the option to extend the ban by 90 days, but triggering the extension requires evidence that parties working on purchasing have made significant progress, including binding legal agreements for such a deal — and TikTok’s parent company, ByteDance, hasn’t publicly updated its stance that the app is not for sale.

Several lawmakers Friday said they agreed with the need for the app to be sold.

“It’s all about the money. If the price is right, the Chinese will sell it,” said Democratic Sen. Richard Blumenthal of Connecticut.

Republican Sen. Josh Hawley said that China is preventing its sale to a US buyer.

“I think somebody would buy it if China would sell it. That’s the problem. They’re preventing its sale. So, but I predict somebody will buy it,” the Missouri senator said. “It’s entirely up to Beijing. I mean, there are willing buyers.”

Hawley said he doesn’t care who buys the app, “just not somebody subject to the Chinese government.”

Decision focuses on ‘extensive’ data collection and security concerns

The decision focuses heavily on concerns about the app’s data collection, which the court described as “extensive.”

“The platform collects extensive personal information from and about its users,” the court said.

The Biden administration had made two national security arguments about TikTok. One was a fear that the China could access users’ information as potential blackmail material. Another was that the company could manipulate content in a way that benefits the Chinese government’s talking points.

The Supreme Court, which often defers to the executive branch on matters of national security, leaned heavily into the data collection argument.

TikTok does “not dispute that the government has an important and well-grounded interest in preventing China from collecting the personal data of tens of millions of U.S. TikTok users,” the court wrote. “Nor could they. The platform collects extensive personal information from and about its users.”

The court was careful to note the “inherent narrowness” of its ruling given the specific concerns regarding TikTok and the Chinese government. In another similar case, the justices said, the ruling could look different.

“Data collection and analysis is a common practice in this digital age. 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,” they wrote.

“A law targeting any other speaker would by necessity entail a distinct inquiry and separate considerations,” the ruling said.

The ruling also noted that justices are “conscious that the cases before us involve new technologies with transformative capabilities.”

Citing Justice Felix Frankfurter in a case from 80 years ago over the application of legal rules to the “totally new problems” raised by the airplane and radio, the current court cited the decision in that case and wrote: “We should take care not to ‘embarrass the future.’”

Gorsuch and Sotomayor discuss level of scrutiny

Conservative Justice Neil Gorsuch wrote a concurrence sketching out distinctions in how he viewed the case from a legal perspective, while stressing that these thoughts came with just a very limited time that the court had to review and decide the case.

He said that he had “serious reservations” about the level of scrutiny the court’s opinion applied to the law, indicating that he thought “strict scrutiny” – which sets a higher bar for the government to overcome to prove the law’s constitutionality – may have been the more appropriate approach.

But even under that high bar, Gorsuch said he thought the government had met its burden.

“Speaking with and in favor of a foreign adversary is one thing. Allowing a foreign adversary to spy on Americans is another,” he wrote.

Liberal Justice Sonia Sotomayor, also concurring in the court’s opinion, wrote separately to air her disagreement with the court’s decision to “assume without deciding” that the law implicates the First Amendment.

The court’s line of cases dealing with the First Amendment, she said, “leaves no doubt that it does.”

Source: CNN