The nation’s highest court is preparing to hear the case against banning one of the most popular social media platforms in the U.S.
In April, President Joe Biden signed a bipartisan bill requiring China’s ByteDance to find a U.S. buyer for its video-sharing app, TikTok. ByteDance, which has expressed its unwillingness to sell TikTok, was given until January 19 to find a buyer or face a ban. That would make TikTok unavailable for download in the U.S. from the App Store (AAPL+0.20%) and the Google Play Store (GOOGL-0.79%) and restrict U.S. internet service providers from allowing access to the platform.
TikTok, which counts more than 170 million U.S.-based monthly users, filed a lawsuit arguing that the legislation — the Protecting Americans from Foreign Adversary Controlled Applications Act — violates its First Amendment rights. However, the law was upheld by the U.S. Court of Appeals for the District of Columbia Circuit in December, which argued that the Chinese-owned app is a potential threat to national security.
“The First Amendment exists to protect free speech in the United States,” Judge Douglas Ginsburg said in the majority opinion. “Here the Government acted solely to protect that freedom from a foreign adversary nation and to limit that adversary’s ability to gather data on people in the United States.”
Now, the Supreme Court has agreed to hear arguments from TikTok and its parent, ByteDance, on Friday — just over a week before the ban is expected to go into effect. Meanwhile, President-elect Donald Trump has asked the Supreme Court to delay implementing the ban until he enters office so that he can look into the case. Trump reportedly met with TikTok CEO Shou Chew at his Mar-a-Lago estate in December. The Justice Department, meanwhile, has pushed back and asked the Supreme Court to reject Trump’s request.
Here’s what to know about the upcoming Supreme Court hearing, and what could happen if TikTok gets banned.
Lawmakers have raised national security concerns over TikTok’s ties to China since it gained massive popularity in the U.S. during the coronavirus pandemic.
Despite being owned by Beijing-based ByteDance, TikTok has said it operates separately from its parent company and that its data centers are located all over the world — but notably not in China.
In its filing with the Supreme Court, TikTok says the platform “is provided in this country [the U.S.] by TikTok Inc., an American company that is indirectly owned by ByteDance Ltd., a Cayman holding company majority-owned by institutional investors.”
Still, the U.S. is concerned that the app could be pressured to share user data with the Chinese government, and that it can be influenced to show certain types of content to U.S.-based users.
Trump said in December that he has a “warm spot” in his heart for TikTok, which he credited for delivering support from younger voters. One of Trump’s major backers, billionaire Jeff Yass, owns a $15 billion stake in ByteDance, according to the Bloomberg Billionaire’s Index.
The incoming president, however, wanted to ban TikTok during his first administration, citing national security concerns and claiming the app’s data collection would give the Chinese Communist Party “access to Americans personal and proprietary information.”
Trump’s executive order to ban TikTok in the U.S. was blocked by a federal judge and then revoked by the Biden administration in 2021.
Under a new executive order, President Biden called China “a foreign adversary” that “continues to threaten the national security, foreign policy, and economy of the United States” by controlling “software applications” — i.e. TikTok.
If TikTok does get banned before Trump re-enters office, a provision in the law would allow him to pause the ban for 90 days if ByteDance can prove it is selling the app. He could also ask the Justice Department and attorney general not to enforce the TikTok ban, according to Alan Rozenshtein, an associate professor of law at the University of Minnesota Law School.
TikTok is asking the Supreme Court to overturn the appeals court’s ruling that it can infringe on free speech rights over national security concerns.
The platform argued in its filing with the Supreme Court that banning it “will silence the speech of Applicants and the many Americans who use the platform to communicate about politics, commerce, arts, and other matters of public concern.”
TikTok also noted that small businesses that depend on it “will suffer substantial and unrecoverable monetary and competitive harms.”
“[I]f Americans, duly informed of the alleged risks of ‘covert’ content manipulation, choose to continue viewing content on TikTok with their eyes wide open, the First Amendment entrusts them with making that choice, free from the Government’s censorship,” the company said in its filing.
People who’ve finally decided to give TikTok a try will be out of luck, with both options to download the app or access it via the web blocked.
Meanwhile, current TikTok users won’t exactly lose access to the app (and it won’t disappear from your phone), but it will become “unworkable” over time without support and updates, according to the Justice Department.
Earlier this week, “Shark Tank” investor Kevin O’Leary said he is planning to partner with billionaire businessman Frank McCourt and his non-profit, Project Liberty, to buy TikTok.
“This isn’t just about buying TikTok’s U.S. assets. It’s about something much bigger: protecting the privacy of 170 million American users. It’s about empowering creators and small businesses. And it’s about building a platform that prioritizes PEOPLE over algorithms,” O’Leary said in a post on X.
In December, McCourt, who founded Project Liberty, said he was building a consortium of associates to buy the platform to avoid the ban. The group, called the “People’s Bid For TikTok,” wants to allow users to control their own data. According to Project Liberty, the bid has received “expressions of interest of over $20 billion in capital.”
On Thursday, the group made a formal offer to buy TikTok and relaunch it “on a new, American-made digital infrastructure.”
During an appearance on CBS’s (PARA-2.30%) “Face the Nation” in December, McCourt said Project Liberty would only acquire the U.S. portion of TikTok — not the algorithm, which the Chinese government considers its intellectual property.
Last May, former U.S. Treasury Secretary Steven Mnuchin said he was interested in buying TikTok’s U.S. portion, and that the app’s algorithm technology could be rebuilt by U.S. companies.
“I’ve actually spoken to a lot of tech companies on working about rebuilding this,” Mnuchin told Bloomberg. “I do believe the algorithms could be rebuilt. So my plan, if we were to purchase, it would be to rebuild the technology under US leadership, make sure that it’s all disconnected from ByteDance going forward, and that it is very robust and secure.”
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