They seem to paint coarse for TikTok in the United States. The judges of the United States Supreme Court seem inclined to support the law that forces the popular short video platform to separate itself from its parent company, the Chinese ByteDance, before the 19th or be banned in this country, according to what appears to be the comments and questions they have been asking this Friday at a hearing to present arguments from the defense and the prosecution.
Although some of the most conservative judges, such as Neil Gorsuch, have been open to considering the law passed last year as an interference in the freedom of expression of Americans – the argument of the lawyers of TikTok and ByteDance – the interventions of The majority of the nine justices throughout the session, which lasted more than two hours, have followed the line that the rule is necessary to protect national security, the argument of the Department of Justice. Among them, the president of the court, John Roberts.
Faced with the arguments of the platform’s lawyers, led by Noel Francisco, Roberts has wondered if “we are supposed to overlook that the parent company is, in fact, subject to doing intelligence work for the Chinese Government. It seems to me that we are ignoring what Congress is most concerned about in this, which is Chinese manipulation of content and the obtaining and harvesting (by China) of “US” data.
For her part, Judge Elena Kagan, one of the three progressive justices of the Supreme Court, has considered that the law “is only directed against this foreign company, which does not have rights protected by the first amendment” of the US Constitution. That amendment guarantees American citizens the right to freedom of expression.
The team of lawyers led by Francisco and representatives of some of the creators maintain that if the law comes into force, one day before the White House is replaced and Democratic President Joe Biden gives up his position to Republican Donald Trump, the freedom of expression of millions of people will be violated. TikTok maintains that nearly 170 million Americans, more than half of the country’s population, use its platform for entertainment or information.
ByteDance and TikTok had requested a postponement of the hearing on the case to give time for the new Republican Administration to come to power. Trump, who in his first term had been very critical of the platform, met at the end of December at his Mar-a-Lago mansion with the CEO of the social network, the Singaporean Shou Zi Chew. And he was in favor of giving TikTok more time so that he, once back in the White House, can negotiate “a political agreement.” Throughout his electoral campaign, before his victory in the November presidential elections, he had stated at several rallies: “I am going to save TikTok.” The platform is especially popular among young Americans.
In his statements, Francis has made abundant reference to Trump’s positions. He has also argued that “the true objective (of the measure) is freedom of expression itself. This fear that Americans, even if they are well informed, can be convinced by China with misinformation. But that is a decision that the First Amendment puts in the hands of citizens.”
Gorsuch, one of the judges appointed by Trump in his first term, did seem to accept that argument, considering “paternalistic” the reasons that the Biden Administration alleges for banning the social network if it continues in Chinese hands. “Don’t we normally assume that the best way to counter an argument we disagree with is to present another argument that refutes it?” he asked.
The Supreme Court is expected to rule on the case at the end of next week, in any case before the 19th.
TikTok estimates that even if the suspension of its service were only temporary, the impact would be catastrophic. According to him, being out of the game for a month would mean losing a third of his daily users, and multimillion-dollar damage to his advertising revenue.
If the Supreme Court gives the green light for the entry into force of the measure, the US Government – which will already be in the hands of Trump – can apply an extension of one hundred days, as provided by the law itself. But the condition is that by then the social network has begun to take steps to put itself up for sale. If the law comes into force, the application would no longer be found in the Android or Apple digital stores. The Department of Justice could fine internet services that allow access to the platform’s millions of users.
The Department of Justice alleges that the measure is not about attacking freedom of expression, but rather seeks to protect national security. He points out that ByteDance can collect extensive data on the social network’s American users and make it available to Chinese authorities. Or disseminate propaganda that favors Beijing’s interests. According to the attorney general, Elizabeth Prelogar, the control of propaganda gives the Asian giant a very powerful weapon to carry out covert psychological influence operations.
The social network maintains that it can include warnings in its content about the possibility of including propaganda. It has also committed to protecting the personal information of its American users: that data, it points out, is stored on servers in the United States and in the hands of national contractors, such as Oracle, and Beijing cannot access it.
