As the deadline for the TikTok ban draws near, President-elect Donald Trump has entered the highly politicized arena and urged the Supreme Court to pause the shutdown and allow him time to “negotiate a resolution.” Back in April, Congress voted to ban the app unless TikTok’s owner, ByteDance, divested from its Chinese parent company by Jan. 19, the day before Trump’s inauguration. Though he vowed to “save TikTok” during his campaign, he didn’t give details on how he would do so. Now, with a SCOTUS hearing scheduled for next week, will Trump get the opportunity to execute his Art of the Deal strategy?
The TikTok Clock Runs Down
President Joe Biden gave TikTok the ultimatum in April 2024 when he signed the Protecting Americans From Foreign Adversary Controlled Applications Act. Despite his concerns about the app’s supposed threat to the country, he still used it during his presidential campaign. Nearly two weeks ago, TikTok filed an emergency application at the Supreme Court, asking the justices to put the potential Jan. 19 ban on hold until the company could get its First Amendment claims sorted out. The Court agreed, expedited a hearing, and scheduled it for Jan. 10.
Trump claims if the deadline is pushed until he is back in the Oval Office, the Court’s opinion won’t be necessary. “President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns,” wrote John Sauer, Trump’s pick for solicitor general, in the president-elect’s amicus brief.
But the Biden administration and some lawmakers say the app’s Chinese ownership remains a threat to national security because “of the vast amount of user tracking and data collection it performs,” reported The New York Times, “and because of the risk that Beijing could use the app to spread propaganda.”
In an interview earlier this year, some former TikTok employees told Fortune the connection between TikTok and ByteDance is “overblown and rooted in xenophobia.” Jacob Wallach, a part of TikTok’s global business solutions team from 2020 to 2022, said the company’s “data collection practices are no less concerning than those of Meta, Google, or Amazon,” explained The Verge, a technology news website.
In 2022, to address national security concerns, TikTok began re-routing all its US data through Oracle, a tech company based in Austin, in an operation known as Project Texas, which could explain why Trump doesn’t have the same concerns about the app as he once did.
Still, the Justice Department argues the company’s Chinese ownership makes it an ongoing danger to US national security. Most lawmakers agree.
The Plot Thickens
Montana Attorney General Austin Knudsen brought together 22 attorneys general on Dec. 27 to file an amicus brief requesting the Supreme Court to continue with its divest-or-ban legislation. On the same day, the Foundation for Individual Rights and Expression (FIRE) led a coalition of organizations in its own amicus brief, “urging the Supreme Court to reverse the decision.”
As FIRE sees it, lawmakers, in their concerns for national security regarding TikTok, have shown a “desire to control the American public’s information diet in a way that strikes at the heart of the First Amendment.”
“The government doesn’t have the power to pull the plug on TikTok without demonstrating exactly why such a dramatic step is absolutely necessary,” wrote Will Creeley, legal director at FIRE. “It has failed to publicly lay out the case for cutting off an avenue of expression that 170 million of us use. The First Amendment requires a lot more than just the government’s say-so. Fifty years after the publication of the Pentagon Papers, Americans understand that invoking ‘national security’ doesn’t grant the government free rein to censor. By failing to properly hold the government to its constitutionally required burden of proof, the court’s decision erodes First Amendment rights now and in the future.”
If the platform were banned from the United States, the backlash from its millions of users and First Amendment advocates would likely be fierce. Not to mention, the federal government prohibiting a social media platform from being used in the country would look to many people like an open door to more censorship. Or, as Sauer wrote: “There is a jarring parallel between the D.C. Circuit’s near-plenary deference to national security officials calling for social-media censorship, and the recent, well-documented history of federal officials’ extensive involvement in social-media censorship efforts directed at the speech of tens of millions Americans.”
Trump hasn’t expressed his thoughts on the merits of the case, but he called it “historically challenging.” Indeed it is, and banning TikTok could set a dangerous precedent.
