The TikTok Ban Is More Likely Than Ever

Soon after Biden signed the bill to ban TikTok in April, the company and a consortium of its users retaliated by filing lawsuits accusing the federal government of violating their First Amendment rights. In December, a federal appeals court upheld the ban law, leaving TikTok with only one legal pathway left to save itself: An appeal to the Supreme Court.

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

“We all now know that China is behind it,” Kagan said.

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

“If Congress, in this very law, regulated data security in other ways with the data brokers that’s perfectly permissible,” Fisher told the court. “But the question before you today was narrower. The question is, is this law before you sustainable on security grounds? And that answer has to be no,” Fisher told the court.

Justices expressed some doubt as to whether the law actually limits TikTok’s freedom of expression, given the option to divest. “TikTok can continue to operate on its own algorithm on its own terms, as long as it’s not associated with ByteDance,” Justice Ketanji Brown Jackson said.

If the ban goes into effect, Apple and Google would be required to remove TikTok from the US versions of their app stores, preventing any new downloads from happening in the country. Internet hosting and data storage providers will also be forbidden from offering their services to the company. Users with TikTok already downloaded onto their devices may 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 won’t 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 justices that the app would go dark after January 19.

Blake Reid, a tech law professor at the University of Colorado at Boulder, said that the justices seemed to target TikTok’s corporate structure, leaving the app’s counsel little time to argue the merits of the data security argument. “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 the national security stuff and the privacy and security stuff which I think is the weakest part of the government’s case.”

The justices seemed more sympathetic to the government’s security concerns, says Alan Rozenshtein, a law professor and former national security adviser to the Justice Department. “It’s very plausible that Tiktok picks up a couple of votes,” Rozenshtein says. “I think the three most likely are justices Sotomayor, Gorsuch, and maybe Kagan, but I struggle to see TikTok getting five votes, which is what it needs to strike down this law.”

In a press conference following the hearing on Friday, Francisco said the argument went “really well” and that the justices “vigorously questioned both sides.”

It’s unclear when the court would issue its decision, but Rozenshtein and Reid believe it will come sooner rather than later. TikTok’s lawyer Francisco suggested that the justices could issue a stay or an injunction to stop the ban from going into effect as scheduled, but they gave no signals as to whether they would consider it.

Trump also pleaded with the nation’s highest court to stop the ban from going into effect in an amicus brief filed last month, promising to find a “political” solution to save TikTok once he retakes power. “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 national security concerns,” Trump lawyer D. John Sauer wrote in the filing. The court has not yet responded to the brief.

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