TikTok briefly banned in the US

By Alvin Wu
Domestic Affairs
TikTok briefly banned in the US

TikTok's message to American users as it shut down their access to the platform late night Jan. 18. ZFJ/Alvin Wu

WASHINGTON, Jan. 27 (ZFJ) — TikTok was briefly banned in the United States from late night Saturday, Jan. 18, to Sunday, Jan. 19, as a result of a law requiring TikTok to divest itself of its American operations.

TikTok is a social media platform for short videos with over 170 million American users and over one billion worldwide users. In 2023, American TikTok users uploaded over 5.5 billion videos, which were viewed over 13 trillion times globally.

BACKGROUND

TikTok’s parent company is ByteDance, which is based in China. ByteDance owns TikTok’s proprietary content recommendation algorithm, and it develops and maintains the algorithm and some of TikTok’s source code in China.

The U.S. government has taken aim at TikTok over concerns that it could be a national security threat. While the government has not publicly provided any proof that TikTok has handed over American users’ data to the Chinese, Chinese law would require ByteDance to hand over private user data from TikTok to Chinese officials should they desire it for intelligence purposes.

American efforts to ban TikTok’s U.S. operations for national security reasons began under President Donald Trump in August 2020. Trump invoked his authority under the International Emergency Economic Powers Act (IEEPA) to issue an executive order to prohibit certain “transactions” involving ByteDance, but federal courts blocked him, ruling that he was exceeding his IEEPA authority.

A few days after issuing the executive order, Trump ordered ByteDance to divest itself of TikTok’s American operations. A divestiture involves selling off certain company assets—in this case, the sale of TikTok to an American owner. ByteDance and TikTok sued, and the case carried over to President Joe Biden’s administration. In February 2021, the D.C. Circuit suspended court proceedings to allow the Biden administration to negotiate a non-divestiture solution to address the government’s national security concerns. Negotiations continued from 2021-2022 but failed.

PROTECTING AMERICANS FROM FOREIGN ADVERSARY CONTROLLED APPLICATIONS ACT

Congress enacted the Protecting Americans from Foreign Adversary Controlled Applications Act. The law received substantial bipartisan support, passing the House of Representatives 352-65. It was then jammed into a foreign aid package, forcing the Senate to pass it 79-18. It was signed into law by Biden on April 24, 2024

The law prohibits “distributing, maintaining, or providing internet hosting services for a foreign adversary controlled application” unless a “qualified divestiture” eliminates control of the app from the “foreign adversary.”

The law explicitly covers ByteDance and TikTok and grants the president the authority to designate additional companies controlled by a “foreign adversary.”

Should a “qualified divestiture” not occur within 270 days of a company’s designation, the app will be banned in America, although the president can grant one 90-day extension if he certifies to Congress that there has been progress towards a divestiture.

ByteDance and TikTok were designated by the act, so their divestiture had to occur by Jan. 19, 2025—270 days after the act’s enactment—to avoid a ban.

The companies challenged the law in the U.S. Court of Appeals for the District of Columbia Circuit on the basis that its restrictions violated the First Amendment. The D.C. Circuit found that the law was subject to First Amendment scrutiny but upheld it on the basis that it was “narrowly tailored” to address the government’s “compelling” national security interests of “countering China’s data collection and covert content manipulation efforts.”

SUPREME COURT OPINION

In a 20-page unsigned unanimous opinion for the case TikTok Inc. v. Garland (24-656), the Supreme Court upheld the law and affirmed the D.C. Circuit’s judgment.

“There is no doubt that, for more than 170 million Americans, TikTok offers a distinctive and expansive outlet for expression, means of engagement, and source of community,” stated the court. “But Congress has determined that divestiture is necessary to address its well-supported national security concerns regarding TikTok’s data collection practices and relationship with a foreign adversary.”

The Supreme Court agreed that the law warranted First Amendment scrutiny. However, it rejected the argument that the government was attempting to restrict speech due to its contents, observing instead that the company was instead advancing the position that the law’s restrictions “‘impose a disproportionate burden upon’ their First Amendment activities.” The court wrote that “the Act’s focus on a foreign government, the congressionally determined adversary relationship between that foreign government and the United States” may impact the application of the First Amendment to this case.

The court found that the government was justified in singling out TikTok because of the platform’s “special characteristics”—namely ”a foreign adversary’s ability to leverage its control over the platform to collect vast amounts of personal data from 170 million U. S. users.” The court clarified the narrowness of its ruling, saying that a law targeting another speaker would require “a distinct inquiry and separate considerations.”

The court observed that news reporting has revealed that TikTok collects a wide variety of user data, including age, phone number, precise location, internet address, device used, phone contacts, social network messages, private messages sent through TikTok, user data and content, behavioral data (like keystroke patterns and rhythms), and device and network data.

“If, for example, a user allows TikTok access to the user’s phone contact list to connect with others on the platform, TikTok can access ‘any data stored in the user’s contact list,’ including names, contact information, contact photos, job titles, and notes,” wrote the court. “Access to such detailed information about U.S. users, the Government worries, may enable ‘China to track the locations of Federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage.’”

The court was not convinced by TikTok’s argument that “it is ‘unlikely’ that China would ‘compel TikTok to turn over user data for intelligence-gathering purposes, since China has more effective and efficient means of obtaining relevant information,’” finding that the platform offered no evidence that the government had unreasonably concluded that TikTok could be a tool of Chinese espionage.

In giving the government wide “latitude” in policymaking decisions, the court decided that the government’s national security concerns were “an important Government interest.”

Justice Sonia Sotomayor wrote a concurring opinion disagreeing with the court’s reasoning for the application of First Amendment scrutiny to the case.

Justice Neil Gorsuch wrote a concurring opinion to discuss some personal comments about the case. He commended the court for not supporting the government’s interest in “the covert manipulation of content” as a valid justification for the law as well as for declining “to consider the classified evidence the government has submitted to us but shielded from petitioners and their counsel.” He expressed “serious reservations” that the law is “content neutral” and thus “escapes ‘strict scrutiny’” but noted that he believes the law does “serve a compelling interest” in preventing China from harvesting Americans’ user data and that the law is “appropriately tailored to the problem it seeks to address.”

POST-SUPREME COURT VERDICT PROCEEDINGS

White House Press Secretary Karine Jean-Pierre said that the Biden administration would leave the law’s implementation to the Trump administration. Trump signaled that he wanted a “political resolution” to the TikTok situation in a request to the Supreme Court on Dec. 27, 2024.

TikTok expressed disappointment in the Supreme Court ruling, saying, “The statements issued today by both the Biden White House and the Department of Justice have failed to provide the necessary clarity and assurance to the service providers that are integral to maintaining TikTok’s availability to over 170 million Americans.”

“Unless the Biden Administration immediately provides a definitive statement to satisfy the most critical service providers assuring non-enforcement, unfortunately TikTok will be forced to go dark on January 19.

TikTok shut down access for Americans late at night on Jan. 18 with the message, “A law banning TikTok has been enacted in the U.S. Unfortunately, that means you can’t use TikTok for now.”

“We are fortunate that President Trump has indicated that he will work with us on a solution to reinstate TikTok once he takes office. Please stay tuned!”

Once Trump took office, he granted TikTok a 75-day extension to reach a deal to continue its U.S. operations. He told reporters aboard Air Force One on Saturday, Jan. 25, 2025, that he expects a deal within 30 days.

TikTok soon restored access on Jan. 19, showing users the message, “Thank you for your patience and support. As a result of President Trump’s efforts, TikTok is back in the U.S.!”

TikTok was removed from Apple’s App Store and the Google Play Store, and it remains unavailable. Users who have TikTok downloaded will still be able to use it but not receive any further updates pending further developments.

Phones with TikTok installed are selling for up to $50,000, reported The Associated Press.

References