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.
That’s according to Chief Justice Roberts, who provided a lighter moment amid the heavy questioning.
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 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.”
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.
Based on briefs filed with the court, Sotomayor says, TikTok seems to collect an unusually large amount of data. And even if users choose to share it, she says, it’s not about whether users think it’s okay to share; it’s whether the US sees it as a threat. Fisher says many of those assumptions don’t “bear out.”
In an exchange with Justice Jackson, Fisher argues that speaking on TikTok can’t be compared to restrictions on Americans associating with dangerous groups like terrorist organizations. Unlike in cases around those restrictions, the government hasn’t singled out a clear and present danger when it comes to TikTok.