Its name is a mouthful, but no one who stops to read the text of the Protecting Americans From Foreign Adversary Controlled Applications Act, which Congress and President Joe Biden codified as law last year, can have any doubts that its purpose was to give TikTok and its foreign owners an ultimatum: sell the wildly popular app to a US-based company, or cease operations in the country by a certain date. Can the government do that? That the date happens to be the last full day of the sitting president’s term is the cherry on top—as if the political branches decided that the stakes of keeping the US version of TikTok under the control of the Chinese government were too high to leave to the whims of the electorate.
There was prescience to that legislative choice. Because now that Donald Trump is the president-elect, and the new Congress has made it clear that he cannot have “one big, beautiful bill” to fund his tax cuts and an expansion of the deportation machine he’d like to set in motion, there’s simply no telling how the incoming commander in chief plans to deal with the bipartisan consensus that TikTok’s days are numbered—unless and until the People’s Republic of China gives it up to a suitable bidder. That won’t be happening: China has reportedly all but chosen a US shutdown if all else fails.
The so-called TikTok ban, which goes into effect in 10 days, is now in the hands of the conservative-majority Supreme Court, which has its own history of moving whichever way the wind blows. Right before the holidays, the justices agreed to fast-track a last-ditch effort by TikTok and Chinese-controlled tech giant ByteDance, plus a group of content creators, to put a freeze on the divestment-or-banishment law. Their main and only argument is that the First Amendment to the Constitution stands in the way of the US government shutting down a platform that some 170 million users rely on for disseminating and consuming news, entertainment, culture, and so much more. Congress shall make no law abridging the sharing of these things, they say.
Or can it? The past, present, and future solicitors general of the United States—the title given to the government’s top Supreme Court lawyer—all have different conceptions of this question and how the case should shake out. For their part, TikTok and ByteDance turned to Noel Francisco, Trump’s former solicitor general and a key defender of everything from his Muslim-targeted travel ban to the failed attempts to kill the Affordable Care Act and protections for Dreamers. In Francisco and his team’s view, Congress is “silencing a speech platform used by half the country,” and thus its ban must be subject to the highest form of judicial scrutiny—the kind that almost no government action can survive.
To make this case, the company more or less argues that it should be treated like an American publisher making editorial choices—and that its powerful algorithm, the one that determines the dance videos or TikTok challenges that appear in a user’s feed, is akin to a newspaper deciding on the articles to put in front of readers. “If the Washington Post used an algorithm to email its subscribers op-eds based exclusively on predicted subscriber preferences, that would be an editorial choice—a decision to target readers with content they likely want, rather than what editors think they should read,” Francisco writes in a legal brief. “The First Amendment fully protects such editorial choices.”
TikTok must really like the Post analogy, if not the paper’s place in the national discourse, because later on in the same brief, Francisco floats a hypothetical in which Congress tries to make Jeff Bezos sell the newspaper because lawmakers fear that the breadth of his transnational business entanglements might lead foreign adversaries to pressure him to steer the journalism in ways favorable to them. “That law would obviously burden his First Amendment rights,” Francisco adds.
The current solicitor general, Elizabeth Prelogar, who will be out of a job by noon on Inauguration Day, will get one last chance to make an impression about where the power lies. Her brief, like others from her tenure, presents a maximalist view of Congress and the president’s prerogative to safeguard national security. And an order to divest, in this realm, has nothing to do with the First Amendment. “Congress and the Executive Branch determined that ByteDance’s ownership and control of TikTok pose an unacceptable threat to national security,” she writes, “because that relationship could permit a foreign adversary government to collect intelligence on and manipulate the content received by TikTok’s American users, even if those harms had not yet materialized.”
The government’s two rationales for the legislation—the threat of data mining and spying by a foreign adversary and the potential manipulation of content in ways that could sway US users—are not merely academic. That TikTok isn’t allowed in China, of all places, is potent evidence that ByteDance is well aware of the app’s power to persuade people with content that only ByteDance’s closely guarded algorithm knows how to curate. That is, ByteDance demands freedom of expression here but not at home. (The company does operate a TikTok-like alternative, Douyin, in China.) As the US welcomes a new presidential administration that is already floating a new world order, it is not hard to imagine a future in which China leans on TikTok to protect its interests here and abroad.