Tik Tok urges Supreme Court to put impending ban on hold

In the oral arguments before the Supreme Court On Friday, lawyers for the Biden administration reiterated their argument that Chinese ownership of TikTok poses a “serious” national security risk to American users.

US Attorney General Elizabeth Prelogar cited risks that China could use the app as a weapon, including manipulating its algorithm to prioritize certain content or ordering parent company ByteDance to transfer large amounts of data from ‘user data collected by TikTok on US users.

“We know that the PRC has a voracious appetite to get as much information on Americans as possible, and that creates a powerful weapon here,” Prelogar said. “Because the PRC could order ByteDance to comply with any request it makes for that data.”

“TikTok’s vast data set would give the PRC a powerful tool for harassment, recruitment and espionage,” he added.

(Oral arguments began shortly after 10 a.m. Stay here for live updates as the proceedings unfold.)

Earlier in oral arguments, when TikTok presented its case, the bench’s judges as a whole seemed skeptical of the company’s main argument, which is that the law is a restriction on speech.

“What exactly is TikTok’s speech here?” Justice Clarence Thomas asked in the opening moments of oral arguments, in an early sign of the court’s apparent doubt that the law is in fact a violation of the First Amendment.

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Noel Francisco, TikTok’s lawyer, tried to frame the case Friday primarily as a restriction on free speech protections under the First Amendment, which the company argues applies to TikTok’s incorporation in the United States.

First Amendment protections must be held under strict scrutiny, which requires the government to meet a higher burden of proof in passing a law. More specifically, the law must be crafted to serve a compelling governmental interest and narrowly tailored to achieve that interest; a TikTok test says the law isn’t being followed.

It is a difficult legal test to satisfy in court. But the U.S. Court of Appeals for the District of Columbia Circuit used it last month to consider the divestment law, and still voted to uphold it, meaning the justices could theoretically consider the case under strict scrutiny and still choose to respect the law, and the January 19 ban.

Justice Sonia Sotomayor noted Friday that the case before them appears to be the first heard by the court that focuses directly on ownership of a platform or app, rather than speech.

The liberal justice also questioned whether the court could view the divestment requirement under the law as a case of data control, and not a free speech issue, as TikTok’s legal team has tried to frame it .

Weighing the case as a data control case would trigger a lower level of scrutiny, a point Francisco also acknowledged.

Francisco told the justices in oral arguments Friday that the U.S. government has “no valid interest in preventing foreign propaganda” and that he believes the platform and its owners should be entitled to the highest level of privacy protection. freedom of speech under the US Constitution.

Francisco told Chief Justice John Roberts that he believes the court should grant First Amendment protections to TikTok because it operates as a subsidiary incorporated in the United States.

TikTok’s lawyer also questioned the Chinese government’s control over the app and ByteDance’s control over the algorithm that shows certain content to users.

Asked by Judge Neil Gorsuch whether parts of the recommendation engine are under Chinese control, Francisco said no.
“What it means is that there are many parts of the source code that fall under intellectual property, that are owned by the Chinese government” and that a sale or divestment would restrict, he said. “It does not alter the fact that this is operated in the United States by incorporated TikTok.”

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Unless judges intervene or TikTok’s owners agree to sell, the app won’t be able to work in the US before January 19.
Oral arguments focus on the level of First Amendment protection that should be afforded to TikTok and its foreign owner, ByteDance.

This is not the first time the Supreme Court has considered whether or not the full protections of the First Amendment should be extended to foreign speakers. In previous cases, they have ruled that speech by a foreign government or individuals is not entitled to full protections.

The Biden administration, meanwhile, will argue that the law focuses solely on monitoring the company’s enforcement, which administration lawyers argue could pose “serious national security threats” to Americans instead of their content.

Administration lawyers will also argue that Congress did not impose any restrictions on speechmuch less any restriction based on viewpoint or content, and therefore does not meet the test for violations of free speech under the First Amendment.

The court’s decision could have major ramifications for the roughly 170 million Americans who use the app.

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The judges agreed in December to hold the fast-track hearing and will have just nine days to issue a ruling before the ban takes place on January 19.