President-elect Donald Trump has clouded the unified support of the law from the executive and legislative branches by requesting the court to temporarily halt it until he can propose an alternative solution after assuming office on Jan. 20. However, legal experts, along with the Justice Department, which urged the Supreme Court to disregard Trump’s plea, have indicated that he lacks a compelling legal basis to suspend the law. The court has postponed making a decision on TikTok’s plea to delay the law’s Jan. 19 deadline until after oral arguments are presented. This suggests that a majority of the justices do not believe TikTok will successfully argue that the law is unconstitutional, according to Saurabh Vishnubhakat, a professor at Cardozo School of Law, who stated, “I think TikTok faces a challenging road ahead in the argument.”
The Supreme Court, handling the case on an expedited timeline, could render a verdict shortly after the arguments on Friday. In their written submissions outlining the case, the two parties disagree on whether the preservation of freedom of expression is at stake, if there are alternative methods to address national security concerns, and the validity of those concerns. Here is an examination of their discrepancies.
Regarding the violation of the 1st Amendment by banning TikTok, the Justice Department contends that the law does not impinge on freedom of expression as it targets TikTok’s ownership by a foreign entity rather than constitutionally protected speech. The Department asserts in its filing that Congress’s objective of safeguarding Americans’ data from potential misuse by China is not related to the expression. Moreover, the aim of thwarting China from utilizing TikTok for influencing U.S. perspectives or disseminating disinformation does not breach the Constitution, as “a foreign nation has no First Amendment right to clandestinely manipulate a U.S. platform.”
On the other hand, attorneys representing TikTok’s content providers argue that they possess a 1st Amendment right to communicate with fellow Americans through a foreign publisher. They liken the use of TikTok to an actor collaborating with a foreign director or an author publishing a book with a British publisher. They assert that the ban on TikTok unless it changes ownership imposes a restriction on the dissemination of ideas. Even under new ownership, they contend, TikTok would lose its unique identity.
In terms of addressing national security concerns more effectively, even if the justices acknowledge that the law encroaches on free speech rights, they can uphold it if they determine that it is narrowly tailored to achieve a significant objective. TikTok suggests that the most effective and least intrusive approach to combating content manipulation is to require a disclosure alert for users. To address data issues, the government could prevent TikTok from sharing sensitive user data with a foreign entity, enforced by the Federal Trade Commission through substantial penalties, as argued by TikTok users’ lawyers. In response, the Justice Department argues that they would not be able to identify a data breach until it is too late, emphasizing the Chinese government’s history of
The government is being urged to reconsider putting its trust in a potential agreement with a party it does not view as trustworthy. A TikTok executive expressed skepticism about the effectiveness of a generic disclosure to app users warning them about the risks of content manipulation by China. The headquarters of TikTok in the United States can be found in Culver City, California, as of September 15, 2020.
The question at hand is whether there exists a substantial national security threat posed by TikTok. TikTok maintains that the government has not presented concrete evidence to demonstrate a significant national security risk that warrants immediate attention. Lawyers representing TikTok argued in court that the U.S. Justice Department is exaggerating China’s interest in obtaining data from the app while downplaying the company’s capacity to safeguard itself against foreign interference.
According to TikTok’s legal team, the government has acknowledged the absence of evidence of any unlawful activities and has failed to provide rationale for its concerns. They questioned why the government is pursuing action without clear justification. Furthermore, they highlighted that the government has not explained why it perceives a potential threat that has not materialized.
Meanwhile, ‘Shark Tank’ host Kevin O’Leary has expressed interest in participating in the acquisition of TikTok, offering his assistance in navigating the situation. The Justice Department contends that China strategically places ostensibly private companies that are under its influence in foreign territories to utilize them at strategic moments. The government’s argument is that as long as TikTok can be exploited by a foreign entity, its vast collection of data on American users remains a valuable asset for espionage activities. Additionally, given TikTok’s significant role as a communication platform, it could be utilized as a powerful tool for clandestine influence operations.
The Justice Department raised concerns that China could potentially deploy these capabilities against the United States at any given moment. The article concludes by suggesting that the Supreme Court is likely to rule in favor of the government and against TikTok, a platform with a user base of 170 million individuals.
(Source: USA TODAY)
