In a recent session before the Supreme Court, legal representatives for the Biden administration once again emphasized the potential dangers of TikTok’s Chinese ownership, arguing that it presents a serious national security threat to American users.
U.S. Solicitor General Elizabeth Prelogar highlighted the risk that China could misuse the app to access and manipulate vast amounts of data from American users through its parent company, ByteDance. “The Chinese government is keen on gathering as much information about Americans as they can, which poses a significant danger,” Prelogar stated. She underscored that the data amassed by TikTok could be used for various malicious purposes, including surveillance and espionage.
During the proceedings, the justices seemed skeptical about TikTok’s main argument, which centers on a claimed infringement of free speech rights. Justice Clarence Thomas raised a critical question about what exactly constitutes TikTok’s speech, indicating doubts about whether the law in question violates the First Amendment.
TikTok’s attorney, Noel Francisco, contended that the company’s status as a U.S.-incorporated entity should afford it stronger protections under the Constitution. He filed the case primarily as one about free speech, asserting that the government needs to demonstrate a compelling interest to impose restrictions. However, given recent rulings that dismissed similar challenges, the outcome remains uncertain.
Justice Sonia Sotomayor pointed out that this case is unique as it deals specifically with the ownership of an app—an angle that may lead the court to view it primarily as a data management issue rather than a speech issue. This could lessen the standard of scrutiny applied, complicating TikTok’s argument.
The court’s decision is particularly relevant for the approximately 170 million Americans using the app, especially as the looming potential ban on TikTok is set for January 19 if the company does not comply with divestiture demands.
The Biden administration’s stance hinges on the assertion that the law focuses on the app’s ownership and its implications for national security, rather than on the expression of ideas within the app itself. They argue that no restrictions based on content have been imposed, thus upholding the view that First Amendment protections do not apply as broadly in this case.
As the justices consider this case, the implications could extend beyond TikTok itself, potentially shaping how similar issues are addressed moving forward regarding foreign ownership and data security among digital platforms in the United States.
