immediately after biden Bill signed to ban TikTok in AprilThe company and a consortium of its users retaliated by filing a lawsuit accusing the federal government of violating their First Amendment rights. In December, a federal appeals court The ban law was upheld, leaving TikTok with only one legal avenue to defend itself: an appeal to the Supreme Court.
Many similar arguments were made in Friday's hearing also. Justice Brett Kavanaugh called the government's data security argument “strong”. Justices Elena Kagan and Neil Gorsuch questioned the government's claim that the app could host “secret” Chinese manipulation operations, arguing that TikTok's algorithm was just as opaque as that of other social media companies.
“We all know now that China is behind this,” Kagan said.
Fischer, who represents the creators involved in the case, argued that judges do not need to answer security-related questions that would be better resolved by broader data privacy law.
“If Congress, in the same legislation, regulates data security in other ways with data brokers, that is perfectly acceptable,” Fischer told the court. “But the question before you today was very narrow. The question before you is whether this law is sustainable on security grounds? And that answer should be 'no,'” Fischer told the court.
The judges expressed some skepticism over whether the law actually limits TikTok's freedom of expression, given the option of divestiture. Justice Ketanji Brown Jackson said, “TikTok can continue to work on its algorithms on its own terms, so long as it is not associated with ByteDance.”
If the ban goes into effect, Apple and Google would have to remove TikTok from the US versions of their App Stores. Preventing any new downloads from happening in the countryInternet hosting and data storage providers will also be banned from offering their services to the company. Users who already have TikTok downloaded on their devices may continue to have access to it, at least for a short period of time, after the ban goes into effect. Once removed from the App Store, users will not be able to download updates for TikTok and the app may become worse and harder to use For longer periods of time. TikTok's lawyer told the judges that the app would be shut down after January 19.
Blake Reed, a technology law professor at the University of Colorado at Boulder, said the judges targeted TikTok's corporate structure, leaving the app's lawyers little time to argue the merits of the data protection argument. “I'm not sure TikTok will lose that argument, but because they spent so much time on this, they didn't get a chance to argue about the national security stuff and the privacy and security stuff, which I think is the weakest part.” . In the case of the government.”
The justices seemed more sympathetic to the government's security concerns, says Alan Rosenstein, a law professor and former Justice Department national security adviser. “It's very appreciable that TikTok got some votes,” says Rosenshtein. “I think the three most likely justices are Sotomayor, Gorsuch, and maybe Kagan, but I'm struggling to see TikTok getting the five votes it needs to strike down this law.”
At a news conference after the hearing on Friday, Francisco said the arguments went “really good” and that the judges “examined both sides vigorously.”
It's unclear when the court will issue its decision, but Rosenshtein and Reed believe it will come sooner rather than later. Francisco, a lawyer for TikTok, suggested a judge could issue a stay or injunction to prevent the ban from taking effect as scheduled, but he gave no indication whether he would consider it.
Trump also asked the nation's highest court to block the ban from taking effect in an amicus brief filed last month, and promised to find a “political” solution to save TikTok once he returns to power. Trump lawyer D. John Sawyer wrote, “President Trump alone has the entire dealmaking expertise, electoral mandate, and political will to negotiate a solution to save the platform while addressing national security concerns.” Entered. The court has not yet given a brief reply.
If the judge upholds the ban, the settlement with Trump could be TikTok's last chance to survive.