To paraphrase The Boss, TikTok users may soon find themselves dancing in the dark. In a unanimous order handed down this morning, the Supreme Court ruled that the law passed by Congress banning the Chinese social-media app does not violate the constitution.
That sets up the new administration with a conundrum the day before it officially takes office:
The Supreme Court on Friday upheld a new law that would lead to a ban of the social media platform TikTok, clearing the way for the widely popular app to be forced to shutter in the U.S. as soon as Sunday. …
The court’s opinion comes days before the law, which was passed with bipartisan majorities of Congress last April, is set to take effect. TikTok and a group of content creators who use the app argued the law infringes on their free speech rights, and the Supreme Court heard arguments in their bid to block it one week ago.
The unanimity of this decision seems at least a little surprising, given the political implications it has. The per curiam decision even quotes Justice Frankfurter’s warning to not “embarrass the future” when dealing with emerging technologies. But this case is less about the technology than it is about national security and the government’s ability to defend against foreign-sourced interference, and as such the First Amendment does not apply:
The challenged provisions are facially content neutral. They impose TikTok-specific prohibitions due to a foreign adversary’s control over the platform and make divestiture a prerequisite for the platform’s continued operation in the United States. They do not target particular speech based upon its content, contrast, e.g., Carey v. Brown, 447 U. S. 455, 465 (1980) (statute prohibiting all residential picketing except “peaceful labor picketing”), or regulate speech based on its function or purpose, contrast, e.g., Holder v. Humanitarian Law Project, 561 U. S. 1, 7, 27 (2010) (law prohibiting providing material support to terrorists). Nor do they impose a “restriction, penalty, or burden” by reason of content on TikTok—a conclusion confirmed by the fact that petitioners “cannot avoid or mitigate” the effects of the Act by altering their speech. Turner I, 512 U. S., at 644. As to petitioners, the Act thus does not facially regulate “particular speech because of the topic discussed or the idea or message expressed.” Reed, 576 U. S., at 163. …
The Government also supports the challenged provisions with a content-neutral justification: preventing China from collecting vast amounts of sensitive data from 170 million U. S. TikTok users. 2 App. 628. That rationale is decidedly content agnostic. It neither references the content of speech on TikTok nor reflects disagreement with the message such speech conveys. Cf. Ward, 491 U. S., at 792–793 (holding noise control and sound quality justifications behind city sound amplification guideline were content neutral).
Because the data collection justification reflects a “purpos[e] unrelated to the content of expression,” it is content neutral. Id., at 791.
The court ruled that the US government has a rational purpose and interest in preventing the government of China from trawling Americans’ personal data via an app that clearly is designed for that purpose. The law itself limits the intrusion into the marketplace to that purpose and is rationally limited in this application to the least intrusive policy possible to achieve that state interest under intermediate scrutiny. The court also notes that TikTok/ByteDance practically concedes this point:
The Act’s prohibitions and divestiture requirement are designed to prevent China—a designated foreign adversary—from leveraging its control over ByteDance Ltd. to capture the personal data of U. S. TikTok users. This objective qualifies as an important Government interest under intermediate scrutiny.
Petitioners do 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. Nor could they. The platform collects extensive personal information from and about its users. See H. R. Rep., at 3 (Public reporting has suggested that TikTok’s “data collection practices extend to age, phone number, precise location, internet address, device used, phone contacts, social network connections, the content of private messages sent through the application, and videos watched.”); 1 App. 241 (Draft National Security Agreement noting that TikTok collects user data, user content, behavioral data (including “keystroke patterns and rhythms”), and device and network data (including device contacts and calendars)). If, for example, a user allows TikTok access to the user’s phone contact list to connect with others on the platform, TikTok can access “any data stored in the user’s contact list,” including names, contact information, contact photos, job titles, and notes. 2 id., at 659. Access to such detailed information about U. S. users, the Government worries, may enable “China to track the locations of Federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage.” 3 CFR 412. And Chinese law enables China to require companies to surrender data to the government, “making companies headquartered there an espionage tool” of China. H. R. Rep., at 4.
For those unfamiliar as to why both the Trump and Biden administrations wanted to shut down TikTok and other ByteDance applications — which this law authorizes too — read the court’s review of the evidence. ByteDance’s only defense to it was that Beijing hadn’t yet demanded access to their data and they thought it unlikely to happen. The first claim in that defense is highly suspect; the latter is just laughable. The CCP has conducted cyberwarfare against US government systems for at least a decade or more to get to that very data. TikTok delivers it on a silver platter.
Now that the court has removed the final obstacle, TikTok could be barred as early as Sunday. However, Trump may not be as enthusiastic as he was before about ending the CCP troll of Americans’ data. Beijing has gone on a full-court diplomatic press to salvage ByteDance’s access to the US market, and Jim Geraghty is worried:
The Chinese government will send its vice president to attend Trump’s inauguration Monday … The CEO of TikTok will not only be attending Trump’s inauguration as well, he will be seated on the dais, the platform where the swearing-in occurs in front of the crowd[.] …
Shou Zi Chew is also expected to attend a Trump “victory rally” Sunday at Washington’s Capital One Arena, and TikTok “is spending $50,000 on an inauguration party honoring influencers who helped Donald Trump spread his campaign message.”
Trump has eased off the tariff talk somewhat too, although in degree rather than application. With the law in effect, though, Trump will have little choice but to enforce it for a while unless and until he can convince Congress to change their minds. Given the wide majorities this bill had in passing both chambers (see Jim’s post), that doesn’t look possible.
An hour or so ago, Trump offered a non-committal statement that only pledged to engage with Xi Jinping on TikTok:
I just spoke to Chairman Xi Jinping of China. The call was a very good one for both China and the U.S.A. It is my expectation that we will solve many problems together, and starting immediately. We discussed balancing Trade, Fentanyl, TikTok, and many other subjects. President Xi and I will do everything possible to make the World more peaceful and safe!
It’s definitely worth watching over the next few days.
Read the full article here
