The TikTok Ban is more likely than ever

Shortly after Biden signed the bill to ban TikTok in Aprilthe company and a consortium of its users have hit back with lawsuits accusing the federal government of violating their First Amendment rights. In December, a federal appeals court upheld the ban, leaving TikTok with only one legal way to save itself: an appeal to the Supreme Court.

Many of these same arguments were made at Friday’s hearing. Judge Brett Kavanaugh called the government’s data security rationale “strong.” Justices Elena Kagan and Neil Gorsuch cast doubt on the government’s claim that the app could host “secret” Chinese manipulation operations, arguing that TikTok’s algorithm was just as opaque as those belonging to other companies. and social media.

“Now we all know that China is behind this,” Kagan said.

Fisher, who represents the creators involved in the case, argued that the justices did not need to answer questions related to security, which would be better resolved by broader data privacy legislation.

“If Congress, in this same law, regulated data security in other ways with data brokers, it is perfectly permissible,” Fisher told the court. “But the question before you today was narrower. The question is, is this law before you sustainable for security reasons? And that answer must be no,” said Fisher to the court.

The judges expressed some doubts about whether the law actually limits TikTok’s freedom of expression, given the option to surrender. “TikTok can continue to operate on its own algorithm on its own terms, as long as it is not associated with ByteDance,” Judge Ketanji Brown Jackson said.

If the ban goes into effect, Apple and Google will be required to remove TikTok from the US versions of their app stores, prevent any new downloads in the country. Internet hosting and data storage providers will also be prohibited from offering their services to the company. Users with TikTok already downloaded on their devices can still continue to have access, at least for a short period of time after the ban goes into effect. Once removed from app stores, users will not be able to download updates to TikTok, and the app could become more buggy and difficult to use over time. TikTok’s lawyer told the judges that the app went dark after January 19.

Blake Reid, a technology law professor at the University of Colorado at Boulder, said the judges appeared to be targeting TikTok’s corporate structure, leaving the app’s board little time to argue the merits of its argument. data security. “I’m not sure that Tiktok will lose that argument, but because they spent so much time on it, they didn’t get to make the arguments about national security and privacy and security things, which I think is the most weak. part of the government’s case.”

The judges seem more sympathetic to the government’s security concerns, says Alan Rozenshtein, a law professor and former Justice Department national security adviser. “It’s very plausible that Tiktok will take a couple of votes,” says Rozenshtein. “I think the three probably are Justices Sotomayor, Gorsuch, and maybe Kagan, but I have a hard time seeing TikTok getting five votes, which is what it needs to overturn this law.”

In a press conference after Friday’s hearing, Francisco said the argument went “really well” and that the judges “vigorously questioned both sides.”

It’s unclear when the court will issue its decision, but Rozenshtein and Reid believe it will come sooner rather than later. TikTok’s lawyer, Francisco, has suggested that judges could issue a stay or injunction to prevent the ban from going into effect as planned, but have given no indication whether they will consider it.

Trump also pleaded with the nation’s highest court to prevent the ban from going into effect in an amicus brief filed last month, promising to find a “political” solution to save TikTok once he regains power. “President Trump alone possesses the consummate negotiating skills, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing national security concerns,” wrote Trump attorney D. John Sauer. filing. The court has not yet responded to the brief.

If the judges uphold the ban, a deal with Trump could just be TikTok’s last shot at survival.