A demonstrator holds a "Keep TikTok" sign outside the US Supreme Court in Washington, DC during January 10 hearings. The hearings pitted national security against free speech. Photo / Getty Images
A demonstrator holds a "Keep TikTok" sign outside the US Supreme Court in Washington, DC during January 10 hearings. The hearings pitted national security against free speech. Photo / Getty Images
The Supreme Court has upheld a law passed by Congress that will see TikTok banned in the US on January 19 if the app is not sold by its Chinese owner, Byte Dance before the deadline.
Congress passed the law after Republican and Democratic lawmakers were overwhelmingly convinced by evidence (not made public) that the app constituted a national security threat.
TikTok says it will “go dark” on Sunday for its US users. Kiwi users will continue to have full access.
The Supreme Court on Friday (today NZT) refused to block a federal law that would effectively ban TikTok in the United States as early as this weekend if the wildly popular video-sharing app does not divest from Chinese ownership.
The justices’ order was a blow for TikTok, prohibiting its operation in the lead-up to Monday’s inauguration of President-elect Donald Trump, who has promised to “save” the app.
Trump had asked the Supreme Court to delay implementation of the law to give him an opportunity to act once he returns to the White House. With the court declining that option and no sale of the app seemingly imminent, the ban is now poised to take effect on the eve of Trump’s inauguration.
The ban-or-sale law was passed in April with bipartisan support and signed by President Joe Biden in response to national security concerns about the Chinese Government’s potential influence over the platform.
With the Sunday (Monday NZT) deadline quickly approaching, the Supreme Court scheduled a special session last week to hear a First Amendment challenge from the company and TikTok creators.
They said the US Government’s national security concerns do not justify an unprecedented, sweeping restriction on the free speech of 170 million Americans who use the app for news, entertainment, and self-expression.
At oral argument, a majority of justices appeared inclined to uphold the law, which requires TikTok’s China-based parent company, ByteDance, to sell the platform.
They credited Congress’s concern about the Chinese Government covertly using the app to collect vast amounts of sensitive data about millions of American users and potentially exploiting that information to blackmail young Americans or turn them into spies.
“That seems like a huge concern for the future of the country,” said Justice Brett Kavanaugh during the nearly three-hour argument.
Several justices from across the ideological spectrum also emphasised that foreign entities do not have First Amendment rights and that the site could continue to operate in a similar manner but under different, non-Chinese ownership.
While Trump has pledged to rescue the app from the ban-or-sale law, how he plans to do so remains unclear.
The Washington Post reported on Wednesday that the President-elect is exploring unorthodox ways to aid the platform, including issuing an executive order once he takes office that would suspend enforcement of the law for 60 to 90 days. But Trump said earlier this week that until the Supreme Court weighed in, “nobody knows” TikTok’s fate.
A Wall Street Journal report says Chinese officials are in talks over a last-minute sale to Elon Musk. Photo / Getty Images
Still, Trump has repeatedly given TikTok’s allies cause for hope, including inviting the company’s chief executive, Shou Zi Chew, to attend his swearing-in ceremony as an honoured guest on the dais.
Chew is also slated to attend at least two other celebrations for Trump ahead of his inauguration, including a reception for the incoming Cabinet and a dinner for incoming Vice-President JD Vance this weekend.
Under the TikTok law, known as the Protecting Americans from Foreign Adversary Controlled Applications Act, app-store giants such as Google and Apple and internet-hosting services could face massive fines if they continue to carry TikTok on their products beyond the deadline for divestment.
Infractions could cost companies $5000 for each user that continues to access TikTok, which could add up to billions of dollars in penalties.
While the law is aimed at forcing app stores and internet hosting services to stop carrying TikTok, executives inside the company have discussed pulling the app offline for US users to highlight how disruptive a ban would be, according to a person familiar with their thinking who spoke on the condition of anonymity to share internal plans. The Information first reported on the possibility, but the person familiar with the discussions said no final decision had been made.
TikTok lawyer Noel Francisco said during oral argument that his understanding was the platform would “go dark” if the court did not delay the law and the White House did not delay implementation.
TikTok has not publicly commented on its plans. TikTok employees in the US were sent an email saying the company was “planning for various scenarios” and that its offices would remain open “even if this situation hasn’t been resolved before the January 19 deadline”.
Even a temporary ban could lead to a major user exodus from which it would be difficult for the company to recover, according to TikTok.
Even though the app would likely remain on the devices of users in the event of a ban, it could become inoperable, or their lack of access to updates could degrade their use of the site. TikTok’s website could also cease to function on internet browsers.
This week, ahead of the court’s decision, many users calling themselves “TikTok refugees” began shifting to competing video apps including the Chinese-owned RedNote and ByteDance-owned Lemon8.
ByteDance could still stave off a TikTok ban by selling the app, but the company has insisted it does not plan to do so, and the Chinese Government has said it opposes divestiture.
Business magnate Frank McCourt and Shark Tank star Kevin O’Leary mounted a separate US$20 billion ($36b) bid.
In making their decision, the justices were reviewing a unanimous ruling in December by the US Court of Appeals for the Washington DC Circuit that said the TikTok ban was permissible. A three-judge panel sided with the Biden Administration and said the law does not violate the First Amendment.
The panel, made up of judges appointed by presidents in both parties, said the law does not take aim at a particular viewpoint and is a reasonable response to Congress’ national security concerns.
