December 27, 2024
The US government came out swinging against TikTok and its 170 million American users in its opening brief to the supreme court.
The government is arguing that the Protecting Americans from Foreign Adversary Controlled Application Act is “entirely consistent with the first amendment” and congress has every right to pass the law forcing a sale or ban TikTok because the platform is a puppet of China. The brief does not mince words. It says TikTok is “subject to the control of the people’s republic of China (PRC)—a nation that congress has deemed a foreign adversary of the United States. TikTok collects vast swaths of data about tens of millions of Americans, which the PRC could use for espionage or blackmail. And the PRC could covertly manipulate the platform to advance its geopolitical interests and harm the United States.”
The government says the law balanced the serious threat TikTok poses to national security with the first amendment by not outright banning TikTok at first but giving TikTok’s parent company Bytedance, a few months to sell its US TikTok operation to a suitable u-s buyer and if they didn’t then the platform will be banned. The US government says no one is saying Americans can’t exercise their free speech – what the government is saying is they can’t exercise their free speech on a platform owned by a country congress has deemed a foreign adversary. Bytedance is a foreign entity operating abroad and thus lacks first amendment rights. Nor can it manufacture a first amendment right by laundering its overseas activities through its American subsidiary, which has no first amendment right to be controlled by a foreign adversary. And TikTok users likewise have no first amendment right to post content on a platform controlled by a foreign adversary.
The US government says yeah it’s true that TikTok is a US based company but the reality is its parent company is Bytedance and Bytedance is based in China therefore subject to Chinese control. The US government says it’s possible that Bytedance has the potential to access all kinds of u-s user data it collects to ““assist or cooperate” with Chinese “intelligence work”. On top of that – the us government says China can control the powerful TikTok algorithm through Bytedance which “creates the risk that the Chinese government could covertly “control the recommendation algorithm, which could be used for influence operations.”
But if you pay attention to the actual words the US government is using in its brief to the Supreme Court – just like the brief to the DC court of Appeals — there are a lot of hypotheticals in there. China “could” or “may” do this or that which is considered a national security threat. The US government publicly has not admitted there is any evidence of any real active national security threat with TikTok. All they will say is “it’s classified.” In the end the government says the Supreme Court should uphold the ruling the appeals court reached which is congress is under no obligation to give anyone a reason for why they pass any law and they can use speculation and inuendo if they want. “under well-settled principles, the government’s national-security decisions “often must be ‘based on informed judgment.’ ” not necessarily on facts or evidence they produce publicly.
Lastly the government argues that TikTok’s argument that the ban isn’t about national security at all but it’s really about stifling speech lawmakers in congress don’t like is nonsense. They say nothing in the text or operation of the act discriminates based on content. Nor are the national-security interests underlying the act content-based: the data-collection interest does not concern content at all, and the covert-content-manipulation interest seeks to “prevent the PRC’s secret curation of content flowing to US users regardless of the topic, idea, or message conveyed.”
Now we will see response briefs from both TikTok and the federal government by next week and oral arguments will be held in front of the Supreme Court on January 10th.
Read the government’s Supreme Court opening brief here.
