A TikTok ban is more likely than ever

Shortly after Biden She signed a TikTok ban bill in Aprilthe company and its users’ union retaliated by filing lawsuits accusing the federal government of violating their First Amendment rights. In December, Federal Court of Appeal TikTok has upheld the ban, and TikTok has only one legal path left to save itself: an appeal to the Supreme Court.

Many of these same arguments were made at Friday’s hearing. Justice Brett Kavanaugh described the government’s data security justifications as “strong.” Justices Elena Kagan and Neil Gorsuch questioned the government’s assertion that the app could host “secret” Chinese manipulation, arguing that TikTok’s algorithm was just as opaque as those of other social media companies.

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

Fisher, who represents the creators involved in the case, said the judges did not have to answer questions about security, which could be better resolved through broader data privacy legislation.

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

The justices expressed some doubts about whether the law actually limits TikTok’s freedom of expression, given the divestment option. “TikTok can continue to operate with its own algorithm on its own terms, as long as it is not associated with ByteDance,” Judge Ketanji Brown-Jackson said.

If the ban goes into effect, Apple and Google will be required to remove TikTok from the US versions of their app stores. Preventing any new downloads from occurring in the country. Internet hosting and data storage service providers will also be prohibited from providing their services to the company. Users who have already downloaded TikTok to their devices may continue to have access, at least for a short period of time after the ban goes into effect. Once it is removed from app stores, users will no longer be able to download updates to TikTok, and the app may become so More buggy and difficult to use over time. TikTok’s lawyer told the justices that the app will disappear after January 19.

Blake Reed, a professor of technology law at the University of Colorado at Boulder, said the justices appeared to be targeting TikTok’s corporate structure, leaving the app’s lawyers little time to debate the merits of the data security argument. “I’m not sure Tiktok is going to lose this argument, but because they spent so much time on it, they couldn’t make the arguments about national security matters and privacy and security matters, which I think are the weakest.” Part of the government’s case.”

The justices seemed more sympathetic to the government’s security concerns, says Alan Rosenstein, a law professor and former national security adviser to the Justice Department. “It’s very plausible that Tiktok could get a few votes,” Rosenstein says. “I think the three most likely are Justices Sotomayor, Gorsuch, and maybe Kagan, but I have a hard time seeing TikTok getting the five votes it needs to overturn this law.”

In a news conference following the hearing on Friday, Francisco said the argument went “really well” and that the justices “strongly questioned both sides.”

It’s not clear 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 the justices issue a stay or injunction to prevent the ban from taking effect as scheduled, but gave no indications on whether they would consider that.

Trump also appealed to the nation’s highest court to block the ban from taking effect in his amicus brief filed last month, promising to find a “political” solution to save TikTok once he regains power. Trump’s lawyer, Dr. John Sawyer in his article: “Only President Trump has the savvy deal-making experience, electoral mandate, and political will to negotiate a resolution to save the platform while addressing national security concerns.” Deposit. The court has not yet responded to the memorandum.

If the justices uphold the ban, the deal with Trump may be just TikTok’s last chance at survival.