On Friday, the Supreme Court unanimously upheld a federal law that effectively bans social media app TikTok in the United States unless the platform's China-based owners sell it. Justices Sonia Sotomayor and Neil Gorsuch disagreed somewhat with the rationale of the unsigned majority opinion, but no justices dissented.
Additionally, all three lower court judges who heard the case TikTok v. Garlandagreed that the law should be complied with. In other words, no judge has ruled that the law is unconstitutional.
Nevertheless, it's unclear what this decision will mean for TikTok and its users in the long term. Congress passed a law banning the app, which the Supreme Court has now upheld, but it's unclear whether the government will actually enforce the law, making the TikTok app available in app stores. It prohibits US companies including Apple and Google from providing it. Services to TikTok.
The law goes into effect Sunday, the day before President Joe Biden leaves office. Biden has said he would not enforce the ban in his final days as president, and it would be unrealistic to expect the federal government to complete the process in one day anyway.
Meanwhile, President-elect Donald Trump has made vague statements hinting that he may not enforce the ban, but it's unclear how he plans to proceed with TikTok after he takes office on Monday. President Trump filed a brief with the Supreme Court stating that he has “the impeccable deal-making expertise, electoral authority, and political He is the only one who has the will.”
However, the law took effect on Sunday, and the statute of limitations for the government to enforce the law is five years. Therefore, even if protected by an executive branch that ignores the law, U.S. companies that choose not to abide by the law face extraordinary risks. Even if President Trump does not enforce the law, his successor may.
So why did the court uphold this law?
A brief summary of the court's decision TikTok v. Garland That is, the justices believed that the risk of China using TikTok to spy on Americans was so great that any free speech concerns arising from the law were trivialized. As courts have repeatedly noted, approximately 170 million people use TikTok in the United States. The app also collects a huge amount of information from its users, which could be obtained by the Chinese government.
As the court wrote, ByteDance, the Beijing-based owner of TikTok, “supports or cooperates with” the Chinese government's “intelligence activities” and has no right to “access or authority to access” the Chinese government. Personal data held by the Company is subject to Chinese law requiring the Company to ensure that the Company manages personal data. ”
The court specifically stated that “TikTok's data collection practices extend to age, phone number, precise location, internet address, device used, phone contacts, social network connections, and the content of private messages sent over the internet.” It cites a parliamentary report that found that This information could be used by the Chinese government to target or blackmail federal employees and business executives. For example, suppose your TikTok data reveals the following: The Cabinet Secretary was repeatedly found in the same hotel room with a woman who was not his wife.
It should be noted that the court's ruling is consistent with that history, as the government has long prohibited foreign countries and companies from owning major communications infrastructure in the United States. For example, the Radio Act of 1912 allowed only U.S. citizens to obtain a radio operator's license. And current U.S. law includes a similar prohibition on foreign control of broadcast radio stations.
Despite this law and precedent, the court went out of its way to emphasize that its decision was narrow and should not be interpreted as broadly authorizing the government to decide who should own media companies. did. As the court stated, “TikTok's size and vulnerability to foreign enemy control, combined with the vast amount of sensitive data the platform collects, justify discriminatory treatment from other similar companies.” There is.
The court added that “laws targeting other speakers necessarily require separate investigation and separate consideration.”
One of the important legal issues TikTok It was the “level of scrutiny” that should have been applied to TikTok's ban. In First Amendment cases, courts apply a particularly skeptical legal test (known as “strict scrutiny”) to any law that seeks to regulate the content of speech. . In other words, the law targets what message a particular speaker is trying to convey. Laws that do not target the content of speech are subject to less rigorous scrutiny by courts, even if the law has some collateral effect on free speech.
but, TikTok Although the opinion does not fully resolve this question, it concludes that TikTok's ban is “face and content neutral” and is not subject to rigorous scrutiny. As the court wrote, the law is justified by the government's desire to prevent “China from collecting vast amounts of sensitive data from TikTok's 170 million users in the United States.” It is not motivated by a desire to suppress certain ideas or viewpoints. If TikTok sold itself to a U.S. company tomorrow, the law would allow speakers to convey any message they want on TikTok.
In any case, the upshot of Friday's opinion is that as long as TikTok remains under Chinese control, the court will not intervene in this dispute over whether it should be allowed to operate in the United States. That does not mean the law will be fully enforced. And that doesn't mean President-elect Trump can't find some way to nullify the law if he wants.
But for now, TikTok's ban is scheduled to go into effect on Sunday.
