On January 10, 2025, the Supreme Court heard arguments in one of the most closely watched cases of the term: whether to uphold a federal law requiring ByteDance, the Chinese parent company of TikTok, to divest from the platform or cease its operations in the United States. At the heart of the case is a collision of First Amendment principles, national security concerns, and the growing influence of foreign-owned technology platforms in American life. Based on the tenor of the arguments, TikTok’s legal challenges appear uphill, with the justices expressing skepticism toward the platform’s defense.

The Core Issue: Data Collection and National Security

The law under review focuses primarily on TikTok’s alleged role as a conduit for Chinese government data collection on American users. TikTok’s critics, including members of Congress and national security officials, argue that the platform’s invasive data-gathering practices—tracking keystrokes, accessing contact lists, and building extensive user profiles—could enable China to surveil, manipulate, or exploit Americans. As Justice Brett Kavanaugh pointedly noted during oral arguments, “If you collect information on people in their teens or twenties, that information might be used against them later in life when they work for the government. That seems like a huge concern for the future of the country.”

This sentiment underscores the broader issue at stake: the tension between protecting individual freedoms and addressing the unique threats posed by foreign-owned platforms in the digital age. Justice Samuel Alito added that TikTok’s First Amendment arguments might falter if the platform were directly controlled by the Chinese government—a hypothetical scenario that raises questions about the distinction between government influence and outright control.

TikTok’s Defense: Selective Enforcement and First Amendment Rights

TikTok’s legal team, led by former Solicitor General Noel Francisco, has argued that the federal law unfairly targets TikTok, likening it to “banning prostitution but only in bookstores.” Francisco emphasized that the law singles out TikTok for practices that are not unique among social media platforms, thereby violating principles of fairness and free speech. However, the justices seemed unpersuaded by this analogy, with Justice Kavanaugh noting that the government need not address every threat simultaneously.

Justice Sonia Sotomayor delved into the scale and depth of TikTok’s data collection, emphasizing that the platform’s practices go far beyond those of other social media companies. She described TikTok’s invasive techniques, such as collecting contact lists and tracking keystrokes, as uniquely problematic.

Divestment: The Practical Solution?

Several justices hinted that ByteDance could avoid these legal battles altogether by divesting TikTok to a non-Chinese entity. Justice Amy Coney Barrett succinctly remarked, “If ByteDance would just divest, we wouldn’t be here.” ByteDance has countered that such a divestment would fundamentally alter TikTok’s operations, arguing that its proprietary algorithm cannot be easily transferred or replicated under new ownership. However, this argument garnered little sympathy from the bench, with Chief Justice Roberts emphasizing that Congress’s concern is not about TikTok’s content but about the potential for Chinese surveillance.

Covert Manipulation and the Limits of the Court’s Authority

While the government also raised concerns about China’s potential covert manipulation of news and information through TikTok, the justices appeared wary of issuing a broad ruling on such grounds. Justice Ketanji Brown Jackson highlighted the importance of distinguishing TikTok’s case from precedents involving foreign-owned newspapers or cable channels, suggesting that the Court should tread carefully to avoid setting expansive new precedents.

What’s Next?

As the Court works to issue a decision within the next nine days, its focus will likely remain narrow, centering on the concrete issue of data collection and national security rather than broader concerns about foreign influence over digital platforms. For TikTok, the stakes could not be higher: the outcome of this case may determine whether the platform can continue operating in the United States in its current form.

This case highlights the complexities of regulating foreign-owned tech platforms in an era where digital borders are increasingly porous. It also underscores the Court’s pivotal role in balancing the rights of individuals and corporations against the government’s mandate to protect national security. Regardless of the outcome, the ruling will undoubtedly shape the legal and regulatory landscape for technology companies operating in the United States.

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