SCOTUS should uphold the law cracking down on the company because it is a data-collection and opinion-manipulating apparatus controlled by a foreign adversary.
SCOTUS should uphold the law cracking down on the company because it is a data-collection and opinion-manipulating apparatus controlled by a foreign adversary.
T his Friday, the U.S. Supreme Court will hear not just the biggest business dispute this year, but also one of the most important national security cases in recent memory. Congress and the Biden administration are demanding either the sale or closure next week of TikTok, the immensely popular, foreign-owned social media platform with more than 170 million monthly users in the United States alone. TikTok v. Garland asks whether freedom of speech prevents the government from regulating foreign-owned networks for national security reasons. The Court must uphold the considered decision of the elected branches — even taking into account President-elect Donald Trump’s request for a delay — which are responsible for repelling the cyber warfare waged by China and our other adversaries.
TikTok’s ownership by a Chinese parent company controlled by the Chinese government (the PRC) creates a severe challenge to the national security of the United States. It is an application that allows users to create, view, and share short video clips. That in itself poses no security threat. Facebook, Google, and other social media networks offer similar capabilities, though none as smashingly popular with users.
Instead, the national security threat arises from two sources. First, TikTok uses a sophisticated computer system to recommend videos to users, to moderate or even censor content, and to execute corporate policies. This algorithm succeeds by collecting enormous amounts of data on TikTok users, such as the videos they watch, how long they watch them, where they watch them, and when they watch them. It collects biometric data from the images and sound that users post in their video clips. And it collects personal information users voluntarily provide in setting up their accounts, including phone, email, and other social media presence.
Posting a funny cat video, however, does not suddenly convert an innocent network into the cyber equivalent of an ICBM. TikTok engages in the same type of data collection as other social media platforms run by Meta, Google, or X (formerly Twitter). They all employ user information to make their websites more addictive and to precisely target ads. They all have decided to feature or to deplatform certain kinds of content and messages. While the courts have yet to review whether social media operators have First Amendment rights themselves (because they “curate” the content that appears on their platforms), or whether the right solely attaches to the users, TikTok’s operations of this kind are not significantly different from its competitors’.
It is the second feature of TikTok — its ownership and location — that presents the national security challenge. As the U.S. Court of Appeals in Washington, D.C., in an outstanding opinion by Judge Douglas H. Ginsburg, found, TikTok’s “ultimate parent” is a company called ByteDance, which is “headquartered in China” and conducts “significant operations there.” ByteDance has created a series of shell companies to attempt to obscure Chinese ownership and operation of TikTok, but both President Trump and President Biden issued executive orders specifically finding that TikTok was controlled by Chinese interests.
In the law before the Supreme Court this week, the “Protecting Americans Data from Foreign Adversary Controlled Applications Act,” Congress and the president agreed that ByteDance was beholden to the PRC, which they deemed a “foreign adversary” (along with Russia, Iran, and North Korea). They also have agreed that the PRC requires its companies to provide the government with full access to the data they collect to fully cooperate with PRC authorities. According to the D.C. Circuit, that law was the “culmination of extensive, bipartisan action by the Congress and by successive presidents.”
Under the act, ByteDance must divest itself of TikTok by selling it to owners not under a foreign adversary’s control. If ByteDance sells TikTok to such a purchaser, TikTok can do business as usual in the US — indeed, the new purchaser could provide exactly the content that TikTok would have offered had it remained in ByteDance’s hands. The crucial difference would be that the TikTok platform would no longer be subject to the PRC’s control. As the D.C. Circuit observed in denying TikTok’s challenge, the act was “carefully crafted to deal only with control by a foreign adversary, and it was part of a broader effort to counter a well-substantiated national security threat posed by the [PRC].”
The National Security Concerns
The location of TikTok ownership in China and its corporate parent’s compliance with Chinese law elevate a business regulation dispute into a critical national security case. It seems obvious that the president and Congress have the power to impose strict controls on economic activity if necessary to achieve national security and foreign policy goals. The Constitution, after all, gives Congress the power “to regulate Commerce with foreign Nations,” which the Founders intended not just to allow the federal government to reach trade agreements, but to engage in economic warfare. Embargoes and sanctions, in fact, remained the preferred form of American foreign policy at the time of the Founding, when the United States could not afford a large standing army and navy. In Dames & Moore v. Regan, the Supreme Court blessed the most sweeping national security sanctions law, the 1977 International Emergency Economic Powers Act, when President Jimmy Carter imposed massive financial sanctions on the mullahs in Teheran to release our hostages. The courts have never questioned the federal laws that have long prohibited foreigners from owning majority stakes in sensitive infrastructure, such as transportation and communications networks.
There are two main national security threats posed by TikTok that easily fall within these economic powers of the federal government. First, as the government argued in court, TikTok “collects vast swathes of data about tens of millions of Americans” that could be used for espionage or blackmail. Collecting data from TikTok would only help complete the PRC’s efforts to gather huge swaths of information on tens of millions of Americans. The PRC recently hacked into the Treasury Department and America’s major telecommunication networks, stole information on all federal employees maintained by the Office of Personnel Management, and took financial data on 147 million Americans from a credit-reporting agency. Our government’s concern over the continued ownership of TikTok by a foreign entity under the thumb of the PRC is further amplified by the fact that TikTok is one of the most important venues for communication within the U.S.
Second, the government contended that TikTok (and so the PRC) could “covertly manipulate” the platform to shape the content that American users receive, to interfere with our political discourse, to promote content that aligns with the PRC’s interests, and to suppress content critical of the PRC. For example, the government argued that the future status of Taiwan might be a “significant potential flashpoint” that was subject to the PRC’s influence operations. The government also reported that ByteDance and one of its TikTok subsidiaries “have taken action in response to PRC demands to censor content outside of China.”
Manipulation of TikTok to affect Americans would fit neatly into the China’s hybrid cyberwar strategy to undermine the United States — hybrid in that Beijing considers Chinese commercial entities as “dual use” weapons that could be used to attack United States information networks. China could use TikTok to send out a stream of propaganda videos questioning Trump administration policy in the event of a crisis in the South China Seas, or even more broadly recommend clips that undermine American faith in their institutions, laws, and leaders over the long term.
The D.C. Circuit agreed that the government had shown a “compelling” interest in protecting national security from these twin dangers, and that TikTok’s claim to have minimized the risks by taking appropriate security safeguards was unconvincing. It is difficult to see how the courts could second-guess the joint view of both the president and Congress on such an insidious and unprecedented threat to the national security. As the courts have long recognized, they do not have access to the information (much of it secret), the wide sources of intelligence, and the expertise available to the elected branches of government. Courts also have little ability to judge whether their intervention into such a case may harm national security. As the Supreme Court said in Holder v. Humanitarian Law Project, which upheld economic sanctions on Islamist groups, courts must afford great weight to the government’s “evaluation of the facts” when the government’s policy “implicates sensitive and weighty interests of national security and foreign affairs.” Judges should especially defer to the president and Congress when the nation is confronting a new adversary (China) that employs technological weapons unseen in past conflicts (hybrid cyberweapons, hacking, manipulation of social media) with which our defense agencies are struggling.
To be sure, the intelligence and national security agencies have lost some of their reputational standing with their misuse of FISA to spy on the Trump campaign and to concoct the discredited claim that Russia had influence over the 2016 Republican candidate for president. But the best means for responding to the possibility of executive abuse in the current threat environment is to rely on ex post congressional oversight and even DOJ investigation, rather than to forestall ex ante the measures needed to prevent China from infiltrating American social media networks.
Free Speech?
Defenders of TikTok cannot present a serious case against the national security powers of the government. Instead, they portray the divest-or-close act as a case of censorship. A typical opinion piece along these lines appeared in the Wall Street Journal last week with the headline: “Banning TikTok Would Violate America’s Free Speech Tradition.” Jacob Mchangama and Jeff Kosseff of the Future of Free Speech think tank at Vanderbilt University compared the law to the restrictions on TikTok in authoritarian countries and claimed that the Supreme Court should not unquestioningly accept the government’s national security justifications. “Such easy acceptance of the government’s national security justifications, with so little skepticism, is contrary to the history of U.S. free speech law,” they write as they invoke the famous Pentagon Papers case as an example where the First Amendment properly triumphed over national security. “If today’s Court allows the TikTok ban to stand, government officials in the future could use it as a legal basis for censoring all kinds of online speech, simply by manufacturing national security concerns,” they say.
Such claims represent a misunderstanding of free speech law. As the Court has long held, the First Amendment does not create an utterly unlimited right to speak. Instead, the Court subjects governmental restrictions on the time, place, and manner of speech to a form of judicial review — “heightened scrutiny” — that balances limits on speech against the government’s interests. The Court has, for example, upheld parade permits and limits on loudspeakers in residential neighborhoods. Instead of utterly free speech all the time, the justices reserve their toughest form of review — known as strict scrutiny — for cases when the government appears to regulate speech based on its content or, even worse, its viewpoint. Thus, the Court has struck down efforts to limit anti-war protests, to ban Nazi parades or hate speech, and to prohibit religious displays in public fora. Even in such cases, however, the regulations can survive if they advance a “compelling government interest” and do so with the most “narrowly tailored” means possible.
The Court’s understanding of the First Amendment shows that the TikTok divestiture law does not infringe free speech. Neither Congress nor the president seeks to restrict the speech on TikTok because of its content. Further, it does not discriminate against the views expressed in any videos — as would be the case if the law selected, for example, pro-Republican or pro-Democratic videos, or clips attacking the wealthy or the poor. Congress simply is not trying to suppress either the content of speech or the viewpoint expressed: Users remain free to post the exact same videos on any of the American competitors to TikTok. The law only prohibits posting the videos on a social media company owned by an adversary such as China.
Our own government could not covertly manipulate the content of a social media platform that it controlled through a complex corporate structure of purportedly “private” entities, thus steering the national political conversation in favor of or against its policies. Can it possibly violate free speech principles for Congress to prevent a foreign adversary from doing so?
The Court should treat the TikTok divestiture requirement as analogous to a time, place, or manner restriction on speech, rather than a ban on the content of the speech that would require heightened scrutiny. The same approach has justified congressional requirements that foreigners cannot own communications networks such as television and radio channels, which, like social media, make speech their business.
In fact, once we understand that Congress and the president have no interest in the content posted by TikTok users, the free speech claim collapses. Without the users, the only free speech interest left is that of TikTok itself. It could claim that it has a free speech right in its recommendation algorithms, its content moderation and curating policies, and the advertising and communications opportunities they present. But the Constitution does not grant a foreign country like the PRC a right to speak in the United States. The First Amendment — and the Bill of Rights as a whole — exists to protect the rights of Americans and those in American territory. There is no historical evidence that would support the idea that foreign nations, not to mention adversaries, had a constitutional right to set up, on our soil, political parties to advance their national security interests or propaganda arms to counter the policies of the American government.
But suppose that free speech advocates successfully convinced the courts that the TikTok law represented a genuine effort to restrict speech. Even in such a case, longstanding jurisprudence would support Congress and the president. As Judge Ginsburg’s lower court opinion found, banning TikTok would survive even the strict scrutiny reserved for laws that restrict the content of speech. National security remains one of the few “compelling government interests” that satisfies strict scrutiny. (It is perhaps the only one that does.)
Here, China in general and TikTok in particular present a severe national security threat. As several Congresses and Presidents Trump and Biden have recognized, China is conducting a broad cyberwar campaign against the United States that involves collecting data on millions of Americans and conducting influence operations on their thinking. TikTok makes available perhaps the most effective tool yet known for China to achieve these objectives without even using illegal hacking, but by simply making the video-based social media platform more addictive to Americans. Congress and the president advance the compelling interest of repelling Chinese cyberwarfare not by trying to censor selectively any of the speech on TikTok, but by moving the network out of the hands of its PRC-dominated owners. Such narrow tailoring means that most American users of TikTok would not even notice the difference.
The Supreme Court should uphold the divestiture or even closure of TikTok because it is no mere free speech vehicle, like the newspaper, radio, television, or even news website. TikTok is a vehicle for a foreign adversary, our greatest security threat since the Soviet Union, to collect vast troves on millions of Americans and to manipulate American public opinion. The government could not effectively protect those who should enjoy our Constitution’s freedoms — the American people — if those same rights were made so easily available for use by foreign governments to defeat us.
John Yoo is a distinguished visiting professor at the School of Civic Leadership and a senior research fellow at the Civitas Institute at the University of Texas at Austin, the Heller Professor of Law at the University of California, Berkeley, and a nonresident senior fellow at the American Enterprise Institute. Robert Delahunty is a Washington Fellow of the Claremont Institute’s Center for the American Way of Life in Washington, D.C.