The TikTok ban is more likely than ever

Soon after Biden signed the bill banning TikTok in Aprilthe company and a consortium of its users retaliated by filing lawsuits accusing the federal government of violating their First Amendment rights. In December, a federal appeals court upheld the ban law, leaving TikTok with only one legal way to save itself: an appeal to the Supreme Court.

Many of these arguments were made at Friday’s hearing. Judge Brett Kavanaugh called the government’s data security principles “strong.” Justices Elena Kagan and Neil Gorsuch questioned the government’s claim that the app could conduct “covert” Chinese manipulation operations, arguing that TikTok’s algorithm was as opaque as other social media companies’ algorithms.

“We all know now that China is behind this,” Kagan said.

Fisher, who represents the creators involved in the case, argued that the judges do not have to answer security questions that could be better addressed by broader privacy laws.

“If Congress regulates data security at data brokers in a different way in this law, that is perfectly permissible,” Fisher told the court. “But the question you faced today was narrower. The question is: Is this law before you sustainable for safety reasons? And that answer has to be no,” Fisher told the court.

The judges expressed doubts about whether the law actually restricts TikTok’s freedom of expression, given the possibility of divestiture. “TikTok can continue to operate with its own algorithm on its own terms as long as it is not associated with ByteDance,” said Judge Ketanji Brown Jackson.

If the ban goes into effect, Apple and Google would be required to remove TikTok from the US versions of their app stores, New downloads are prevented from taking place in the country. Internet hosting and data storage providers will also be prohibited from offering their services to the company. Users who have already downloaded TikTok on their devices may still have access, at least for a short period after the ban takes effect. After being removed from app stores, users will no longer be able to download updates on TikTok and the app could be more buggy and difficult to use over time. TikTok’s lawyer told the judges that the app would no longer be available after January 19th.

Blake Reid, a technology law professor at the University of Colorado at Boulder, said the judges appeared to have targeted TikTok’s corporate structure and left the app’s lawyers little time to discuss the merits of the data security argument. “I’m not sure Tiktok will lose this argument, but because they spent so much time on it, they couldn’t argue about the issues of national security and privacy and security, which I think are the weakest part of the case the government.”

The justices appeared to be more sympathetic to the government’s security concerns, said Alan Rozenshtein, a law professor and former Justice Department national security adviser. “It is very plausible that Tiktok will get a few votes,” says Rozenshtein. “I think the three most likely are Justices Sotomayor, Gorsuch and maybe Kagan, but I have a hard time imagining TikTok getting the five votes it needs to strike down this law.”

In a news conference following Friday’s hearing, Francisco said the argument went “really well” and that the justices “questioned both sides vigorously.”

It is unclear when the court will make its decision, but Rozenshtein and Reid believe it will be sooner rather than later. TikTok’s lawyer, Francisco, suggested that judges could issue a stay or injunction to prevent the ban from taking effect as planned, but gave no indication whether they would consider doing so.

In an amicus brief filed last month, Trump also called on the nation’s highest court to block the ban from taking effect and promised to find a “political” solution to save TikTok once he takes back power. “President Trump alone has the extensive negotiation expertise, electoral mandate, and political will to negotiate a solution to save the platform while addressing national security concerns,” wrote Trump attorney D. John Sauer the submission. The court has not yet responded to the brief.

If judges uphold the ban, a deal with Trump could be TikTok’s last chance for survival.