The Supreme Court appeared inclined Thursday to uphold a law that would force Chinese parent company ByteDance to sell TikTok, with all nine justices ruling that national security concerns posed by the social media app preclude free speech. It said it outweighed any potential threats to freedom.
The high court heard oral arguments from lawyers for TikTok and its content creators, arguing that the U.S. government's purpose in enforcing the law was not to prevent the collection of user data or thwart foreign espionage, but rather to comply with the U.S. Constitution. They argued that it was whittling away at the core rights of the First Amendment.
“The government's real target, if anything, is the speech itself,” attorney Noel Francisco said in his opening statement, noting that the government's real target is, if anything, the speech itself. concluded that this is how the law protecting the public should be established. I can't stand. ”
Attorney General Elizabeth Preloger, arguing on behalf of the Biden administration, countered that “the Chinese government's control of TikTok poses a serious threat to national security,” calling the law necessary but saying the law is necessary. “Once TikTok is used, Americans' freedom of speech is no longer restricted,” the law said. Freed from the control of foreign enemies. ”
“No one disputes that. [People’s Republic of China] “It seeks to undermine U.S. interests by amassing vast amounts of sensitive data on Americans and engaging in covert influence operations,” Preloger said. “And no one disputes that China pursues these goals by secretly handing over data to companies like ByteDance and forcing them to carry out China's directives.”
“These realities mean that the Chinese government can always weaponize TikTok to harm the United States,” she added, adding, “We are not using TikTok with Americans to build detailed intelligence.” It noted that “an unprecedented amount of personal data” was collected from both contacts and “profiles of hundreds of millions of people”.
Last month, a three-judge panel of the U.S. Court of Appeals in Washington, D.C., unanimously upheld the law, which is scheduled to go into effect on January 19, just before Inauguration Day, but lawyers for President-elect Donald Trump A petition was filed in court to postpone the bill. It will remain in effect until he takes office.
The incoming commander-in-chief has at least 14.7 million followers on the platform and held a TikTok CEO show at his Mar-a-Lago club in December after retaking the White House. -Meeted with Mr. Gee Chu.
The high court must issue a decision promptly by that deadline. Under the law, TikTok has just 270 days to exit ByteDance before it starts losing significant ad revenue.
Justice Clarence Thomas, one of the court's most conservative members, began two hours of questioning of both parties.
“What on earth is a TikTok speech?” Thomas first asked Francisco. “They are trying to turn ByteDance’s restrictions on algorithms and company ownership into restrictions on TikTok’s speech.”
“So why can't we simply view this as a restriction on ByteDance?” he added. “ByteDance is not a citizen and is not based in the United States.”
Other justices echoed this implication, pushing back against arguments by social media platform advocates that the law amounted to “silencing the voices of 170 million Americans.”
“Congress doesn't care about what's on TikTok,” Chief Justice John Roberts declared at one point. “They're not saying we should stop TikTok. They're saying the Chinese should stop controlling TikTok. So there's no direct burden on expression at all.”
“The only solution is for someone to run TikTok,” he added.
“What do First Amendment rights really have to do with this?” Liberal Elena Kagan also said that being barred from accessing ByteDance's algorithm would be a violation of free speech. “TikTok still has the ability to use whatever algorithm it wants, right?”
“It's the editors and publishers we choose that we think will best amplify our speech,” replied Jeffrey Fisher, an attorney who represents several TikTok content creators.
Mr. Francisco also suggested that “ByteDance has … First Amendment rights to the extent that ByteDance speaks in the United States.”
Francisco and Fisher said that if the law were left in place, TikTok would go “undercover” almost immediately on January 19, because ByteDance would cut off access to the algorithm and harm content creators. He insisted that he would.
They also give examples of the outcry that would arise if the government sought to further suppress speech in US-based publications like Jeff Bezos' Washington Post or platforms such as Elon Musk's X. However, neither is owned by a federally designated foreign adversary. .
“I don't think this is just a speech issue. It's a data management issue,” another liberal justice, Sonia Sotomayor, declared.
“Are we correct that the algorithm is the voice here?” Justice Amy Coney Barrett asked at another point, distinguishing between American speech and that of the U.S. subsidiary TikTok.
“What we're talking about is… editorial discretion underlying the algorithm,” Barrett said. “And let me be clear: many of your examples, including Mr. Bezos's, speak to the right of American citizens to repeat what foreign companies say.”
“The concern here is the covert content manipulation part of the algorithm. That's what ByteDance wants to talk about, right?” she asked.
“It's ultimately TikTok's choice whether or not to put it on the platform,” Francisco responded, adding that, contrary to Preloger, the company and its parent company ByteDance “absolutely can resist any content manipulation by China.” he claimed.
“Your stronger argument, at least the one that interested me the most, is the argument that if the government is doing something specifically aimed at changing the content that people see, it needs to be subject to the following conditions: It seems to me that there has been intense scrutiny,'' Barrett said. “But I don't think it will affect TikTok as much as it will affect ByteDance.”
Justice Brett Kavanaugh also suggested that the U.S. government needs the power to force sales, given the possibility of espionage by foreign enemies.
“I think Congress and the president were concerned that China had access to information about millions and tens of millions of Americans, including people in their teens and twenties. “They will use it over time to train spies, to convert people, to blackmail people – people who will be working in the FBI, CIA, or the State Department a generation from now,” Kavanaugh said. explained.
“This user data is located on data servers in Virginia controlled by Oracle,” Francisco countered, a claim contradicted by both federal and independent investigations into the accessibility of TikTok's user data. . “You can't give it to ByteDance, you can't give it to China, you can't give it to Google, you can't give it to Amazon. You can't give it to someone who's under threat of huge fines.”
But lawyers quickly backtracked, acknowledging that risks remained.
“We do recognize the risks,” Francisco added about the pervasiveness of data. “But there are many reasons why that risk still does not justify the law.”
Justice Neil Gorsuch also suggested a factual dispute between the parties goes to the heart of the case.
“The government is saying that TikTok in the US has no authority or ability to change its algorithm or recommendation engine and is only following ByteDance’s instructions. You disagree with that in your reply summary. Someone? Someone has to be right and someone has to be wrong,” Gorsuch said.
Francisco responded: “There is nothing on the record that shows TikTok does not have its own independent record-making authority, just like its other subsidiaries.” “TikTok, which is incorporated as a U.S. company, has the right to choose its algorithm.
“Abandoning this algorithm would be an incredibly bad business decision on their part, and I highly doubt they would do it,” he acknowledged. “What they clearly have the power to do is shut down platforms in the face of Chinese pressure.”
But Gorsuch also said that ByteDance's opposition to the sale indicates some degree of pressure and that even if given 270 days to sell, the company's Chinese parent He also emphasized that his position is that he does not think a sale is “feasible.''
“I think that's very difficult,” Francisco insisted.
Elsewhere, Justice Samuel Alito deployed a clothing metaphor to explain the bond shared by TikTok creators and ByteDance's algorithms.
“I mean, I really love this old shirt, because I've been wearing this old shirt. But I could go out and buy the exact same thing, but no, I love this old shirt. ” he said. “Is that what we have here?”
Fisher countered that there is no equivalent to this algorithm in the social media space.
“It's not that we couldn't dismantle it. We can say we're independent,” Francisco added at another point. “You cannot recreate TikTok in any way.”
When news broke last April that a law was being passed to force the sale of TikTok, reports surfaced that former Treasury Secretary Steve Mnuchin was trying to buy TikTok with a group of investors.
“Congress did not ban TikTok. It simply prevented foreign adversaries from owning our social media platforms, something we already do with TV and radio stations. ,” former Rep. Mike Gallagher (R-Wis.) wrote on XFriday.
“SCOTUS must abide by the law and give Americans the opportunity to use TikTok free from the control of the Chinese Communist Party,” it said of the bill, which could also target apps controlled by other foreign parent companies. co-creator Gallagher added.
Feroot Security, which recently audited private and public health websites, found that TikTok tracking pixels have increased by 35% on the sites' pages over the past year. bloomberg It was reported on Monday.
Using pixels, the app was able to collect identifying information such as web users' names, ages, addresses, and even medications they were taking and recent medical procedures.
Feroot CEO Ivan Tsarynny said Chinese law also protects ByteDance from any obligation to disclose whether its information is exported from the United States.
“Our investigation overwhelmingly found that Americans’ data is being exposed to Chinese companies on the websites we all use every day,” Tsarny told the Post. , pointed out that ByteDance is not an outlier.
“While TikTok is the primary way Chinese companies collect data on Americans, it is not the only one, so rules that prevent adversary countries like China and Russia from collecting data would be helpful.”
The justices are expected to rule on TikTok v. Garland within two weeks.
