Among the Biden administration’s leading arguments is that TikTok represents a “grave” threat to national security, both because it collects “vast swaths of data” about tens of millions of Americans and because China could “covertly manipulate” the platform to sow discord and disinformation. If a majority of justices appear to be embracing that claim, it would be a very bad sign for TikTok.
The Supreme Court has a long history of deferring to the other branches when questions of national security come up. A federal appeals court in early December unanimously concluded that the government established a need to force TikTok to split with its Chinese-based parent company, ByteDance, or comply with the ban.
“The ability to shape what 175 million Americans see on TikTok means that for the vast majority of Americans under the age of 30 who use TikTok as their primary news source, the Chinese government is controlling and shaping that news feed,” said Jamil Jaffer, a former chief counsel to the Senate Foreign Relations Committee who founded the National Security Institute at George Mason University. That, combined with the data China collects both through TikTok and through well-publicized hacks, he said, “are enough of a national security threat to support the government’s effort to force divestment of TikTok to a US entity.”
Jaffer, who served under former Republican Tennessee Sen. Bob Corker on the committee, was one of several former national security officials who submitted a brief to the Supreme Court backing the government. But TikTok backers say the Biden administration, in defending the ban enacted by Congress, hasn’t provided concrete proof of Chinese abuse. The DC Circuit, though it sided with the administration, noted that officials had not provided “specific intelligence” showing the China “in the past or is now coercing TikTok into manipulating content” in US.
“The threat here is really nebulous,” said David Greene, civil liberties director at the Electronic Frontier Foundation.“So a social-media platform’s foreign ownership and control over its content-moderation decisions might affect whether laws overriding those decisions trigger First Amendment scrutiny,” Barrett wrote. “Courts may need to confront such questions when applying the First Amendment to certain platforms.”
Some legal experts said that Barrett’s comments could be seen as the justice previewing her willingness to back the federal ban, which was widely expected to eventually reach the high court. “I expect that we have a preview of the court’s ultimate disposition in this case in Justice Barrett’s concurrence … where she really was looking to probably this law where she said that the First Amendment does not extend to foreign-owned corporations,” said Gus Hurwitz, a senior fellow at Penn Carey Law School who specializes in tech law and online speech issues.
But others said Barrett’s concurrence should be viewed through a much more limited lens. “I think it’s pretty clear that Barrett wanted to be 100% clear that she was not deciding in the NetChoice case that the same protections that would apply to American platforms would necessarily apply to foreign platforms,” said Jameel Jaffer, the director of the Knight First Amendment Institute at Columbia University. “But I think she was reserving the question rather than deciding it.” As an institution wed to tradition, the Supreme Court has a reputation of rebuffing technology – at least in its own practices, if not its rulings.
The justices have ardently rejected televising their arguments. By contrast, Canada has invited cameras into the courtroom for more than a decade. The high court has livestreamed audio of its arguments since the pandemic but shuts that stream down when announcing opinions. And neither the court itself nor any of its members have a public presence on social media. So when technology cases make their way into the ornate courtroom, it’s often worth watching how the justices – with an average age pushing 65 – handle the finer points of the internet age.
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