TikTok’s last stand: Supreme Court weighs ban as deadline looms

Tiffany Cianci was finishing a TikTok live stream to 70,000 people when we met in the elevator after a press conference. She was in good spirits even after camping out in her van outside the Supreme Court beginning at 2 AM. “I don’t see it as hopeless right now, and I don’t think that they’ve already decided,” she says. Creator and petitioner Tim Martin also feels “very excited and optimistic” after today’s oral arguments, saying their attorneys “did an incredible job.”

That’s a wrap until the justices issue their ruling (or a stay to keep the law from taking effect). TikTok and creators’ attorneys will be speaking at a press conference this afternoon, and we’re going to check out the scene outside the Supreme Court.

Those foreign-owned companies also collect plenty of data, Francisco argues, showing that Congress was really concerned with going after TikTok specifically since e-commerce apps are not part of the law.

TikTok lawyer Noel Francisco comes back for a brief rebuttal, and he’s pushing the court to stay the law even without making a determination about whether TikTok could succeed. This, obviously, would push its enforcement into the domain of President-elect Donald Trump, who has promised to save the app.

Go figure. She points out, however, that even if the president does choose not enforce the law, companies that don’t comply will still technically be breaking it. And, she adds, the statute of limitations is five years.

Prelogar says the court shouldn’t buy the argument that TikTok hasn’t been given enough time to sell, pointing to Musk’s acquisition of Twitter as a sign of how quickly deals can go through.

Kavanaugh asks whether third parties that could be punished under the law (like Apple and Google) could rely on a presidential promise not to enforce it. Prelogar says there would likely be “strong due process arguments” they could rely on to avoid enforcement under that promise. But pulling TikTok from app stores also might be the push China needs to do a sale, she adds.

In response to Justice Kavanaugh, Prelogar says Congress was clearly and “sincerely” motivated by data privacy concerns, and even if you discount the questions about propaganda and manipulation, that’s enough to make the law stand up. She says TikTok is totally off-base in claiming that motivation is “tainted” if the propaganda-related arguments don’t hold up.

That’s because the US’s point of view seems to be that the content may be different if TikTok weren’t owned by a Chinese company, she says. Prelogar says the law itself doesn’t dictate that TikTok produce a different mix of content after divestiture, it’s just about the potential for covert manipulation.

But she also takes note of the government’s argument that it’s also based on data security concerns. “You can’t really run their algorithm without sharing the very data that we are concerned about as a threat,” Sotomayor says, summarizing the government’s stance.

Justice Kagan asks about a Supreme Court ruling that Americans have a right to receive foreign propaganda. “It was focused only on foreign adversary control,” Prelogar says of the TikTok divest-or-ban law. Therefore, she argues, that ruling’s precedent shouldn’t apply. Kagan seems to disagree — saying the concerns about covert content manipulation clearly appear to be about content.

That’s according to Chief Justice Roberts, who provided a lighter moment amid the heavy questioning.

While grilling US Solicitor General Elizabeth Prelogar about algorithmic blackboxes, Justice Elena Kagan made the point that it’s not just TikTok where content is served up without explanation.

The difference, she argues, is both that newspapers collect far less information than social media sites and that readers understand a newspaper may be transmitting some of its owners’ views. By contrast, she says, social media users expect a platform is organically facilitating others’ speech, when it actually may be covertly manipulated.

“Don’t we normally assume the best remedy for problematic speech is counter-speech?” he asks. He seems skeptical of Prelogar’s argument that a disclosure on TikTok that its content recommendations could be covertly manipulated would be too broad to make Americans aware of the risks.

US Solicitor General Elizabeth Prelogar takes on the question of how (hypothetical) TikTok “covert” data manipulation by China poses a uniquely pressing threat, but Justice Kagan seems skeptical. “Everybody now knows that China’s behind it,” notes Kagan — so is any shaping of the algorithm really covert? She points out that you could make a similar argument about manipulation for almost any social network. “You can take any of these algorithms ... none of these are apparent. You get what you get and you think, that’s puzzling!”

US Solicitor General Elizabeth Prelogar says in her opening statement that TikTok could be used to build profiles on Americans and be used for “harassment, recruitment, and espionage.” It’s not just collecting info on the 170 million Americans on the platform, she says, but also their contacts that users have granted access to.

The justice asks if it’s “like somebody’s attachment to an old article of clothing,” or if there’s something about TikTok’s current composition that is impossible to replicate, even with “all the geniuses at Meta.” Fisher says you can’t just replicate the particular “collection of genius” with “another group of people.”

Hypothetical Jeff Bezos cannot catch a break. Justice Barrett poses this example, then asks whether Post readers could sue if Congress banned the Post unless he divested, trying to pick apart the different rights of corporations and the American public. (Fisher says it would indeed be an issue for readers.)

The lower court decided that it wasn’t necessary for it to see the classified information on which Congress based its decision that TikTok’s ownership structure poses a national security threat. But Gorsuch seems to have some reservations about how that played out.

Fisher notes that even if TikTok is banned, it gets to keep all the data it harvested, whereas a broader data-focused rule would require it to expunge it. We need a federal data privacy law!