SCOTUS: TikTok’s China Connection Is So Scary & Urgent, We Can Ban An Entire App. Biden Admin: Just Kidding, We Won’t Enforce It
It seemed pretty obvious from the way the Supreme Court's oral arguments went regarding the TikTok ban that this would be the outcome: a 9-0 per curiam decision saying eh, it's fine to ban TikTok."
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. 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. For the foregoing reasons, we conclude that the challenged provisions do not violate petitioners' First Amendment rights.
The ruling is fundamentally problematic on a number of different levels, but it's the new reality. This decision sets a dangerous precedent that could enable further government overreach and censorship, under the guise of national security concerns. We'll have another post exploring the amount of absolute censorial fuckery that this ruling will create, if not in practice, at least among the eager-to-censor political class who will view this as an instruction manual.
But, the key thing to me is that (as was suggested earlier this week), the Biden admin responded to this ruling, on a law that he fought for, signed excitedly, and had his solicitor general strongly defend in front of the Supreme Court, by saying eh, never mind."
This whiplash-inducing reversal from the Biden administration, after championing the TikTok ban, underscores the arbitrary and politically motivated nature of this decision. It raises questions about whether there was ever a genuine national security justification, or if it was merely a convenient excuse for censorship.
To summarize: this was a grave national security threat because China could get access to all sorts of secret data (which they already have access to because we don't have any comprehensive data privacy law) or maybe it was because they could manipulate the minds of children (which every other form of media also can legally do) or because THIS IS DIFFERENT IT'S CHINA YOU DUM DUM" as people on social media keep trying to tell me. The lack of a clear, consistent justification for singling out TikTok, while other apps and platforms engage in similar data collection practices, reveals the arbitrary and capricious nature of this ban.
Indeed, it was such a grave threat that the Supreme Court felt they had to rush the briefing way out of line with normal briefing schedules, because it was just so so important to block this app that the kids like.
And then... when the Supreme Court blesses it, the Biden admin is just... not interested anymore.
President Joe Biden won't enforce a ban on the social media app TikTok that is set to take effect a day before he leaves office on Monday, a U.S. official said Thursday, leaving its fate in the hands of President-elect Donald Trump.
Trump has also suggested he won't enforce the ban because he wants to negotiate" some sort of agreement to take credit for everything, even though he was the first to try to ban the app after getting angry that kids on the app made him look foolish. Trump's desire to negotiate" and take credit, rather than address any actual concerns, suggests (once again) that political grandstanding, not national security, is the true motivation.
Incredibly, TikTok's CEO Shou Zi Chew (who is Singaporean, not Chinese) is expected to have a prime seating location on the dais" at Trump's inauguration on Monday, which seems like an odd thing if Congress, and now the Supreme Court, has made it clear that he's the guy running a dastardly spying/manipulation app for our (apparently) biggest adversary.
This jarring juxtaposition-condemning TikTok as a national security threat one moment, then honoring its CEO the next-lays bare the incoherence and hypocrisy at the heart of the government's stance.
All of this is just painfully stupid, which the kids on TikTok all seem to recognize with their satirical mocking of the ban by saying farewell to my Chinese spy" and embracing the even more connected-to-the-CCP" app RedNote.
As for the decision itself, it effectively ends what little moral high ground the US had left on internet openness and freedom. For the past two decades, across multiple administrations, the State Department had taken a fairly strong position that foreign countries banning apps (which they all claim they do for national security purposes") was a dangerous attack on internet openness and freedoms.
And now the US can no longer claim that with a straight face. This decision is a gift to authoritarian regimes around the world. It provides cover and legitimacy for censorship and digital protectionism, weakening America's ability to advocate for internet freedom on the global stage.
I guarantee that Chinese officials will actually use this blundering mess against the US. They will claim that it is a vindication of the approach that they take with the Great Firewall of China, saying that they protect national security through banning apps" and that the US has chosen to follow their lead in doing the same.
We've now said it's okay to create a Great Firewall of America, further splintering the internet and effectively ending the global internet experience. There will be a price paid for that, though we'll only learn more about it with time. This Balkanization of the internet into national silos is a tragic reversal of the promise of a borderless digital world that fosters free expression and connection.
As for the ruling itself, the fact that the entire process was rushed shows through very clearly. The reasoning is muddled, and big questions are punted. It basically says well, if Congress strongly believes there's a national security threat, then the First Amendment concerns probably aren't that big a deal." That seems pretty problematic, because Congress has a pretty long list of censorial ideas that they can pass with strong majorities.
The Court's deference to Congress on matters of national security, at the expense of First Amendment scrutiny, is a troubling abdication of its constitutional role. It opens the door for the legislative branch to run roughshod over civil liberties, using national security as a convenient excuse.
The Supreme Court is supposed to protect against that kind of thing, but here is suddenly willing to give Congress great deference.
To start, the House Report focuses overwhelmingly on the Government's data collection concerns, noting the breadth" of TikTok's data collection, the difficulty in assessing precisely which categories of data" the platform collects, the tight interlinkages" between TikTok and the Chinese Government, and the Chinese Government's ability to coerc[e]" companies in China to provid[e] data." H. R. Rep., at 3; see id., at 5-12 (recounting a five-year record of Government actions raising and attempting to address those very concerns). Indeed, it does not appear that any legislator disputed the national security risks associated with TikTok's data collection practices, and nothing in the legislative record suggests that data collection was anything but an overriding congressional concern. We are especially wary of parsing Congress's motives on this record with regard to an Act passed with striking bipartisan support.
If data privacy is truly the concern, then a comprehensive data protection law, rather than a piecemeal ban on a single platform, would be a more effective and less constitutionally problematic solution. By focusing on TikTok alone, Congress and the Court have enabled arbitrary censorship rather than addressing the underlying issue.
Furthermore, not parsing Congress' motives seems especially problematic, given that many members of Congress directly cited impermissible (under the First Amendment) reasons for why they wanted this ban. Like, Mitt Romney directly said the ban was a good idea because kids on TikTok were too strongly pro-Palestine. The Court's failure to grapple with the censorial motives animating the TikTok ban - as exemplified by Sen. Romney's comments about suppressing pro-Palestinian views - is a dereliction of its duty to safeguard free expression against viewpoint discrimination.
It can't just be that as long as Congress attaches a non-content censorship reason to a bill that many want for censorial purposes, it magically makes it okay. But that is what the Supreme Court is saying here.
About the only attempt by the Supreme Court to recognize the havoc they are wreaking is a weak hey, we're ruling narrowly, don't read too much into this precedential ruling we are putting out":
While we find that differential treatment was justified here, however, we emphasize the inherent narrowness of our holding. Data collection and analysis is a common practice in this digital age. But TikTok's scale and susceptibility to foreign adversary control, together with the vast swaths of sensitive data the platform collects, justify differential treatment to address the Government's national security concerns. A law targeting any other speaker would by necessity entail a distinct inquiry and separate considerations.
The Court's attempt to cabin the reach of its decision is unconvincing. By opening the door to First Amendment exceptions based on striking bipartisan support," the Court has invited further challenges to free expression. Censorial politicians will surely seize upon this language to test the boundaries of what speech they can suppress in the name of national security.
This is a messy, rushed decision that the US is going to regret. Hell, Biden's reaction to it suggests he already regrets it. But it's going to live on and create future problems for a country that once at least tried to appear to hold the moral high ground on an open and free internet.
The TikTok ban, and the Court's acquiescence to it, represent a low point for digital civil liberties in America. It's a self-inflicted wound that will haunt us for years to come, as we grapple with the fallout of a fragmented internet and emboldened censors, both at home and abroad.