By Andrew Chung, John Kruzel, David Shepardson
WASHINGTON (Reuters) -The Supreme Court seemed inclined on Friday to uphold a law that would force a sale or ban the popular short-video app TikTok in the United States by Jan. 19, with the justices focusing on the national security concerns about China that prompted the crackdown.
During about 2-1/2 hours of arguments, the nine justices pressed lawyers representing TikTok, its Chinese parent company ByteDance and app users about the risk of China’s government exploiting the platform to spy on Americans and carry out covert influence operations – while also probing free speech concerns.
“Are we supposed to ignore the fact that the ultimate parent is, in fact, subject to doing intelligence work for the Chinese government?” conservative Chief Justice John Roberts asked Noel Francisco, a lawyer for TikTok and ByteDance.
The companies and users sued to block the law passed by Congress with strong bipartisan support last year and signed by outgoing Democratic President Joe Biden, whose administration is defending it. They appealed a lower court’s ruling upholding the law and rejecting their argument that it violates the U.S. Constitution’s First Amendment protection against government abridgment of free speech.
Some justices raised apprehensions about the law’s impact on free speech, but their prevailing concern seemed centered on the national security implications of a social media platform with foreign owners that collects data from a domestic user base of 170 million Americans, about half the U.S. population.
Conservative Justice Brett Kavanaugh asked Francisco about potential long-term risks of China gathering data on users, especially those who flocked to the app at a young age, and using “that information over time to develop spies, to turn people, to blackmail people – people who a generation from now will be working in the FBI or the CIA or the State Department.”
The Supreme Court’s consideration of the case comes at a time of rising trade tensions between the world’s two biggest economies. Republican Donald Trump, due to begin his second term as president on Jan. 20, opposes the ban.
Trump on Dec. 27 urged the court to put a hold on the Jan. 19 deadline for divestiture to give his incoming administration “the opportunity to pursue a political resolution of the questions at issue in the case.”
Francisco called the app one of the most popular speech platforms for Americans and said it would essentially shut down on Jan. 19 without a divestiture. Francisco said the real target of the law “is the speech itself – this fear that Americans, even if fully informed, could be persuaded by Chinese misinformation. That, however, is a decision that the First Amendment leaves to the people.”
Citing Trump’s stance on the case, Francisco asked the justices to, at a minimum, put a temporary hold on the law, “which will allow you to carefully consider this momentous issue and, for the reasons explained by the president-elect, potentially moot the case.”
Conservative Justice Samuel Alito later floated the possibility of the court issuing what is called an administrative stay that would temporarily freeze the law while the justices decide how to proceed.
A COLD WAR HYPOTHETICAL
Liberal Justice Elena Kagan’s questions underscored the court’s competing concerns over national security and free speech.
Referring to ByteDance, Kagan told Francisco that the law “is only targeted at this foreign corporation, which doesn’t have First Amendment rights.”
But later Kagan grilled U.S. Solicitor General Elizabeth Prelogar, arguing for Biden’s administration, with a Cold War-inspired hypothetical question about whether Congress could have forced the American Communist Party to divorce itself from the Soviet Union in the 1950s.
“Content manipulation is a content-based rationale: we think that this foreign government is going to manipulate content in a way … that concerns us and may very well affect our national security interests,” Kagan said. “That’s exactly what they thought about Communist Party speech in the 1950s, which was being scripted in large part by international organizations or directly by the Soviet Union.”
Francisco told Kavanaugh that on Jan. 19 “at least as I understand it, we (TikTok) go dark. Essentially, the platform shuts down unless there’s a divestiture, unless President Trump exercises his authority to extend it.” But Trump could not do that on Jan. 19 because he does not take office until the following day, Francisco said.
“It is possible that come Jan. 20th, 21st or 22nd, we might be in a different world,” Francisco added.
Responding to conservative Justice Amy Coney Barrett, Francisco said it could take “many years” for ByteDance to divest TikTok.
Francisco presented the hypothetical situation of the Chinese government taking hostage the children of Washington Post owner Jeff Bezos to force him and his newspaper to publish “whatever they wanted on the front page of the Post, so China effectively has total control.”
“I still don’t think that Congress could come in and tell Bezos, ‘Either sell the Post, or shut it down,’ because that would violate Bezos’ rights and the Washington Post’s rights,” Francisco said.
‘GEOPOLITICAL GOALS’
Prelogar said Chinese government control of TikTok poses a grave threat to American national security. TikTok’s immense data set on its American users and their non-user contacts gives China a powerful tool for harassment, recruitment and espionage, Prelogar said, and its government “could weaponize TikTok at any time to harm the United States.”
Prelogar said the First Amendment does not bar Congress from acting to protect Americans and their data. Prelogar also cited a “long tradition” of barring foreign control of U.S. communication channels and other critical infrastructure.
“The national security harm arises from the very fact of a foreign adversary’s capacity to secretly manipulate the platform to advance its geopolitical goals in whatever form that kind of covert operation might take,” Prelogar said.
Asked by conservative Justice Clarence Thomas to identify TikTok’s speech at issue in the case, Francisco cited TikTok’s powerful algorithm, which feeds individual users short videos tailored to their liking.
“What the act does is it says TikTok cannot do that unless ByteDance executes a qualified divestiture,” Francisco said. “That’s a direct burden on TikTok’s speech.”
(Reporting by Andrew Chung, John Kruzel and David Shepardson in Washington; Editing by Will Dunham)
