A unanimous Supreme Court on Friday upheld a law that effectively bans the wildly popular app TikTok in the United States starting Sunday. The ruling ended, at least for now, a legal battle involving national security, free speech and a cultural phenomenon that has forced millions of Americans to spend their time transfixed by their phone screens at all times.
The decision, which forces the app to go dark if it remains under Chinese control, could be a fatal blow to TikTok’s US business. President-elect Donald J. Trump, who is due to be inaugurated the next day, has vowed to “save” the app, though his mechanisms for doing so remain unclear.
In ruling against TikTok, the court acknowledged the app’s broad cultural impact while sharing the government’s concerns that China’s role raised national security concerns.
“There is no question that, for more than 170 million Americans, TikTok provides a distinctive and far-reaching outlet for expression, means of engagement, and source of community,” the court’s opinion said. “But Congress has determined that the divestment is necessary to address its well-supported national security concerns about TikTok’s data collection practices and relationship with a foreign adversary.”
TikTok gained ground in American culture in 2020 as a pandemic curiosity and quickly grew into an undeniable juggernaut. It features short-form videos that are a leading source of information and entertainment for tens of millions of Americans, especially younger ones.
Not only has the app given rise to a new crop of celebrities and fueled chart-topping books, music and movies, it has also helped shape debate around the Israel-Hamas war and last year’s US presidential election.
Although TikTok’s lawyer told judges last week that the app would “go dark” if it lost the case, it was unclear how quickly the termination would happen. At the very least, app store operators like Apple and Google face significant legal penalties if they continue to distribute and update the TikTok app.
TikTok challenged the law on First Amendment grounds, saying the government should have used more modest measures to address its security concerns. For example, the company said, Congress could have banned sending Americans’ data abroad and required disclosure of China’s role in shaping the app’s algorithm.
TikTok’s parent company, ByteDance, said more than half of the company is owned by global institutional investors and that the Chinese government has no direct or indirect ownership stake in TikTok or ByteDance.
But ByteDance is based in Beijing and subject to Chinese control. The court accepted the US government’s argument that national security concerns justified the law mandating the sale or ban of TikTok.
The decision, delivered on an extremely abbreviated timeline, has few rivals for the time-honored First Amendment precedents and the enormous practical impact it will have. But the opinion stressed that some of its conclusions were tentative.
“We are aware that the cases before us involve new technologies with transformative potential,” the opinion said. “This challenging new context advises caution on our part.”
Justices Sonia Sotomayor and Neil M. Gorsuch issued concurring opinions agreeing with the majority’s conclusion but challenging some of its reasoning.
The government had offered two justifications for the law: that China’s control of TikTok allowed it to collect reams of private data and spread covert disinformation; The court accepted only the first reasoning, saying that TikTok’s ownership structure raised discretionary and troubling concerns.
“Data collection and analysis is a common practice in this digital age,” the majority said. “But TikTok’s scale and susceptibility to control by foreign adversaries, along with the vast swaths of sensitive data the platform collects, warrant different treatment to address the government’s national security concerns.”
The majority said it was appropriate to defer to congressional decisions on national security, citing a 2010 ruling that upheld a law banning even benign support for terrorist organizations.
“We are mindful that this Act arises in a context in which ‘national security and foreign policy concerns arise in connection with efforts to address evolving threats in an area where information is difficult to obtain and the impact of certain behaviors is difficult to assess. ». “, said the opinion. “Therefore, we show substantial deference to the government’s ‘informed judgement’ here.”
The decision was made a few days before Mr. Trump takes office.
He has declared his support for the app and is exploring the possibility of an executive order that could allow TikTok to continue operating despite the pending ban. But the contested law gives him limited room to maneuver, allowing the president to suspend the law for 90 days only if he certifies to Congress that significant progress has been made toward a sale documented in “relevant binding legal agreements.”
Mr. Trump has other alternatives. He could instruct the Justice Department not to implement the law for now. It could urge Congress, now controlled by Republicans, to enact new legislation. Or he could try to get the owner, ByteDance, to comply with the law — by selling TikTok.
But that last option may not be possible, as TikTok has repeatedly argued that China would ban the export of ByteDance’s algorithm.
“The decision of the Supreme Court was expected and everyone should respect it,” wrote Mr. Trump on social media. “My decision on TikTok will be made in the not too distant future, but I need to have time to review the situation. Stay tuned!”
Although the Biden administration has pointed out that the timing of the decision left it up to the incoming administration to enforce the law, Attorney General Merrick B. Garland welcomed the decision.
“Authoritarian regimes should not have unfettered access to the sensitive data of millions of Americans,” he said in a statement. “The court’s decision confirms that this act protects the national security of the United States in a manner consistent with the Constitution.”
People who create videos posted on TikTok, on the other hand, said the decision was a bitter financial blow.
“It’s a big source of how I make a living,” said Riri Bichri, known for her 2000s parody nostalgia videos. “Everyone will have to adapt.” Ms Bichri earns money from brand deals, meaning companies pay her to promote them or their products on the app.
When the case was argued last week, a lawyer for the Biden administration told the court that any ban need not be permanent and that TikTok could start operating again if it is sold after the deadline.
In court documents, however, the company said it would be severely damaged by even a brief halt in operations.
“If the platform becomes unavailable on January 19,” its brief statement said, “TikTok will lose its users and creators in the United States. Many current and would-be users and creators – both at home and abroad – will migrate to competing platforms, and many will never return even if the ban is later lifted.”
Indeed, a competing platform, Xiaohongshu, was the most downloaded free app on Apple’s US app store on Tuesday. More than 300 million people, mostly in China, use the app, which many Americans call “Red Note.”
President Biden signed the law into law last spring after it was passed with broad bipartisan support. Lawmakers said owning the app posed a risk because the Chinese government’s oversight of the private companies allowed it to retrieve sensitive information about Americans or spread covert disinformation or propaganda.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia District dismissed a challenge in early December to the law brought by TikTok, ByteDance and several American users, ruling that the measure was justified by national security concerns. The justices differed somewhat in their reasoning, but were united in accepting the government’s arguments that the Chinese government could exploit the site to harm national security.
Justice Sotomayor wrote in a concurring opinion that the Supreme Court should have looked more closely at the First Amendment argument, but that she would have upheld the law anyway.
In his own concurring opinion, Justice Gorsuch wrote that he was pleased the court did not rely on the government’s second justification: that the divestment was required to counter potential Chinese disinformation.
“One man’s ‘hidden content manipulation’ is another man’s ‘editorial discretion,'” he wrote. “Journalists, editors and speakers of all stripes routinely make less transparent judgments about what stories to tell and how to tell them.”
He added: “Talking to and for a foreign adversary is one thing. Allowing a foreign adversary to spy on Americans is another.”
The government had submitted classified information to the appeals court to support its arguments. The Supreme Court said its decision was based solely on the public record. Judge Gorsuch welcomed that, too.
“Attempts to introduce secret evidence into court proceedings,” he wrote, “present obvious constitutional concerns.”
At the bottom, he wrote: “I am convinced that the law before us seeks to serve a compelling interest: to prevent a foreign country, designated by Congress and the president as our nation’s adversary, from amassing vast amounts of personal information on tens of millions of Americans.”
Sapna Maheshwari and Madison Malone Kircher contributed to the report.
