The Supreme Court ruled Friday that a law forcing TikTok's parent company to exit the popular video-sharing platform is constitutional, siding with the government in a fight over free speech and national security. .
This decision is a big loss for TikTok, but the app's fate is still undecided.
The ban is scheduled to go into effect on January 19, the last full day of President Biden's term. But the Biden administration has indicated it will leave enforcement to the incoming Trump administration, which will take over the White House on Monday.
Here are the main takeaways from Friday's decision:
TikTok's future is in Trump's hands
The future of TikTok now appears to be in President-elect Trump's hands after the Biden administration said it would not enforce the law, which was scheduled to go into effect the day before Trump's inauguration.
White House press secretary Karine Jean-Pierre said Friday that the Biden administration recognizes that implementation “has no choice but to be up to” the incoming administration, given “the sheer fact of timing.”
“President Biden's position on TikTok has been clear for months since Congress sent the bill to the president's desk in an overwhelmingly bipartisan fashion. TikTok should remain available to Americans. “but only under U.S. ownership or other ownership that addresses identified national security concerns.” Pierre said in a statement.
Trump, who vowed during his campaign to “save” TikTok, had asked the Supreme Court to delay the ban so he could negotiate a deal that would make TikTok available to U.S. users.
While the court's decision and its speed are a blow to Trump, the Biden administration's choice not to enforce the ban gives Trump more flexibility.
The president-elect is reportedly considering issuing an executive order suspending law enforcement for two to three months until a deal is reached. washington post.
“The Supreme Court's decision was expected and everyone must respect it,” President Trump said in a post on Truth Social on Friday. “My decision regarding TikTok will be made in the not-too-distant future, but I need time to consider the situation. Stay tuned!”
Technology companies face compliance decisions
Neither Biden nor Trump appear keen on enforcing the ban, but it remains unclear how the tech companies covered by the law will react when it takes effect Sunday.
The law prohibits companies from “distributing, maintaining, updating, or providing internet hosting services” for apps like TikTok that are under the control of a foreign adversary.
App store providers like Apple and Google, as well as cloud computing company Oracle, which hosts TikTok, face hefty fines from the Justice Department for violating the law if the government ultimately chooses to enforce it. There is a possibility that
Companies can be fined up to $5,000 per user. TikTok has more than 170 million U.S. users and could be fined about $850 billion.
Apple, Google and Oracle have not responded to questions about how they plan to handle TikTok since Sunday.
TikTok's data collection practices, not content, led to court ruling
The court found that the government's national security concerns about TikTok were legitimate and that the law did not “impose any more substantial burden on speech than is necessary” to address those concerns.
However, the justices only ruled on one of the government's two concerns regarding TikTok's Chinese ownership. The Biden administration has been increasingly concerned about China's access to U.S. user data and the possibility that the Chinese government could secretly manipulate TikTok's algorithms.
The court agreed with the administration on data collection and rejected TikTok's argument that China is unlikely to use its relationship with the platform to access U.S. user data.
“The government's concerns about TikTok-related data collection here do not exist in isolation,” the majority opinion said, noting China's “extensive” efforts to obtain U.S. data through a variety of means. did.
However, when it comes to content manipulation, the court appears to have ignored this issue, finding that the law was justified based solely on the data collection argument.
“The record before us amply supports the conclusion that Congress would have passed the challenged provisions based solely on the legitimacy of the data collection,” the paper wrote.
Justice Neil Gorsuch poured cold water on that argument in a separate concurring opinion.
“One person's 'covert content manipulation' is another's 'editorial discretion.' “Journalists, publishers, and speakers of all kinds routinely make opaque decisions about what stories to tell and how to tell them,” Gorsuch wrote.
Gorsuch warns about other apps
During oral arguments last week, Gorsuch expressed perhaps more sympathy for TikTok than the other justices.
Mr. Gorsuch ultimately voted with eight of his colleagues to uphold the legislation, but did not join the court's unsigned opinion. In a solo concurrence, the conservative justices expressed some hesitation, pointing to the constraints of hearing cases on an expedited schedule.
The first judge appointed to the court by President Trump also raised the possibility of alternative platforms to TikTok.
“We do not know whether this legislation will be successful in achieving its objectives,” Gorsuch wrote.
“A determined foreign adversary may seek to replace the lost surveillance application with another. As time passes and the threat evolves, less drastic and more effective solutions may be available. Even what happens next with TikTok remains unclear. …But the question we face today is not the wisdom of the law, but its constitutionality.”
Court deemed the First Amendment applied.
At the heart of TikTok's legal challenges was what level of First Amendment scrutiny would apply.
The Biden administration argued that free speech rights were not involved at all because TikTok's China-based parent company ByteDance does not have First Amendment protections. The Justice Department says the law is not about speech per se, but simply about controlling corporations from foreign enemies.
The Supreme Court's decision does not put an end to this problem.
“This court has not articulated a clear framework for determining whether regulations on non-expressive activities that unduly burden those engaged in expressive activities will trigger strict scrutiny. We do so here. There is no need,” the court's unsigned opinion states.
“We find, but do not make a determination, that the challenged provisions fall into this category and are subject to First Amendment scrutiny.”
Justice Sonia Sotomayor, an appointee of former President Barack Obama, agreed with her colleagues that the ban should remain even if the First Amendment applies, but disagreed with the court's mere assumptions. , wrote a short consent form.
“There is no reason to assume without determining that this law will affect the First Amendment, because our precedent leaves no doubt that it does,” Sotomayor said. wrote.
Although the court did not make a clear decision on what level of scrutiny would apply, this decision dispelled the idea that the most severe tier would apply.
The court said that at most only an interim test would apply. And the court ruled that the law would be easily passed given the government's important interest in protecting national security.
“This record justifies Congress in specifically addressing national security concerns related to TikTok,” the opinion said.
