Shortly after Biden signed into law banning TikTok in Aprilthe company and a consortium of its users responded by filing lawsuits accusing the federal government of violating their First Amendment rights. In December of federal appeals court upheld the ban, leaving TikTok with only one legal avenue to save itself: an appeal to the Supreme Court.
Many of the same arguments were made at Friday’s hearing. Judge Brett Kavanaugh called the government’s data security rationale “strong.” Justices Elena Kagan and Neil Gorsuch questioned the government’s claim that the app could host “covert” Chinese manipulation operations, arguing that TikTok’s algorithm is as opaque as that of other social media companies.
“Now we all know that China is behind it,” Kagan said.
Fisher, who represents the creators involved in the case, argued that the judges did not have to answer security-related questions, which would be better addressed by broader data privacy legislation.
“If Congress, in this law itself, has regulated data security in other ways with data brokers, that’s perfectly permissible,” Fisher told the court. “But the question you asked today was narrower. The question is whether this law before you is sustainable for security reasons? And that answer has to be no,” Fisher told the court.
The judges expressed doubt whether the law really limits TikTok’s freedom of expression, given the possibility of opt-outs. “TikTok can continue to operate under its own algorithm on its own terms, as long as it is not affiliated with ByteDance,” Judge Ketanji Brown Jackson said.
If the ban goes into effect, Apple and Google would have to remove TikTok from the US versions of their app stores, preventing new downloads in the country. Internet hosting and data storage providers will also be prohibited from offering their services to companies. Users who have already downloaded TikTok to their devices may still have access, at least for a short time after the ban takes effect. After being removed from app stores, users will not be able to download updates on TikTok, and the app may become more buggy and difficult to use over time. TikTok’s lawyer told the judges that the app will shut down after January 19.
Blake Reid, a technology law professor at the University of Colorado at Boulder, said the judges appeared to be targeting TikTok’s corporate structure, leaving the app’s lawyers little time to argue the merits of the data security argument. “I’m not sure Tiktok is going to lose that argument, but because they spent so much time on it, they didn’t get to make the arguments about national security and privacy and security issues, which I think are the weakest part of the government’s case.”
Judges seemed more understanding of the government’s security concerns, says Alan Rozenshtein, a law professor and former national security adviser at the Justice Department. “It’s very likely that Tiktok will pick up a few votes,” says Rozenshtein. “I think the three most likely are Justices Sotomayor, Gorsuch and maybe Kagan, but I have a hard time for TikTok to get the five votes it needs to overturn this bill.”
At a news conference after Friday’s hearing, Francisco said the argument went “really well” and the judges “vigorously questioned both sides.”
It’s unclear when the court will issue a decision, but Rozenshtein and Reid believe it will come sooner rather than later. TikTok’s lawyer, Francisco, suggested that judges could issue a stay or injunction to prevent the ban from going into effect as planned, but gave no signal whether they would consider it.
Trump also begged the nation’s highest court to stop the ban from taking effect in an amicus brief filed last month, vowing to find a “political” solution to save TikTok once he regains power. “President Trump alone possesses the supreme deal-making expertise, electoral mandate and political will to negotiate a resolution to save the platform while addressing national security concerns,” Trump’s attorney, D. John Sauer, wrote in submission. The court has not yet responded to the submission.
If the justices uphold the ban, the deal with Trump could be TikTok’s last chance to survive.