A TikTok ban is more likely than ever

Soon after Biden signed the bill to ban TikTok in Aprilthe company and a consortium of its users retaliated by filing lawsuits accusing the federal government of violating their First Amendment rights. in december federal appeals court upheld the ban, leaving TikTok with only one legal avenue to save itself: an appeal to the Supreme Court.

Many of those same arguments were made at Friday’s hearing. Judge Brett Cavanaugh called the government’s case for data security “strong.” Justices Elena Kagan and Neil Gorsuch cast doubt on the government’s claim that the app could host “covert” Chinese manipulation operations, arguing that TikTok’s algorithm is as opaque as those belonging to other social media companies.

“We all know now that China is behind this,” Kagan said.

Fisher, who represents the creators involved in the case, argued that judges should not have to answer security questions that would be better addressed by broader data privacy legislation.

“If Congress, in this same law, regulates data security in other ways with data brokers, that’s perfectly permissible,” Fisher told the court. “But the question before you today was narrower. The question is, is this law before you tenable for security reasons? And that answer has to be no, Fisher told the court.

The judges expressed some doubt about whether the law actually limits TikTok’s freedom of expression, given the ability to opt out. “TikTok can continue to operate 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 will 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 the company. Users with TikTok already downloaded on their devices can still continue to have access, at least for a short period of time after the ban takes effect. Once removed from app stores, users will not be able to download TikTok updates and the app can become more buggy and difficult to use over time. TikTok’s lawyer told the judges that the app will stop after January 19.

Blake Reed, 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 lawyer little time to make its data security case. “I’m not sure Tiktok will lose this argument, but because they spent so much time on it, they failed to make the arguments about national security and privacy and security issues, which I think are the weakest part of the government’s case.” “

The justices seemed more sympathetic to the government’s security concerns, said Alan Rosenstein, a law professor and former national security adviser at the Justice Department. “It’s very plausible that Tiktok will pick up some votes,” says Rosenstein. “I think the three most likely are Justices Sotomayor, Gorsuch and maybe Kagan, but I struggle to see TikTok getting the five votes it needs to overturn this law.”

At a news conference after Friday’s hearing, Francisco said the argument went “really well” and that the justices were “vigorously questioning both sides.”

It’s unclear when the court will issue its decision, but Rosenstein and Reed believe it will come sooner rather than later. TikTok’s lawyer Francisco suggested that judges could issue a stay or injunction to stop the ban from going into effect as planned, but they gave no indication whether they would consider it.

Trump also pleaded with the nation’s highest court to stop the ban from taking effect in an amicus brief filed last month, promising to find a “policy” solution to save TikTok once he takes power again. “Only President Trump has the perfect deal-making experience, electoral mandate and political will to negotiate a solution to save the platform while addressing national security concerns,” wrote Trump attorney D. John Sauer c the submission. The court has not yet responded to the appeal.

If the judges uphold the ban, the deal with Trump could be TikTok’s last chance for survival.