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.
Liberal Justice Ketanji Brown Jackson says that the law in question “doesn’t say, ‘TikTok, you can’t speak.’” What TikTok seems to want, she suggests, is access to ByteDance’s algorithm — but if TikTok came up with its own algorithm after divestiture, it could still operate.
In an exchange with Justice Barrett, Noel Francisco explains the two reasons why it’s not possible to disentangle from ByteDance: first, that it would take years to reconstruct a team that could maintain the source code, and second, that it would need to get users around the world to sign up for an essentially new platform to share content.
Justice Barrett doesn’t seem to be buying that the law is a straightforward ban on TikTok. “You keep saying shut down,” she says to TikTok’s attorney about what would happen after January 19th. “The law doesn’t say that TikTok has to shut down.”