Editors note: This article has been updated as of Jan. 17, 2025.
TikTok, an Editors’ Choice award-winning social media app, faces a potential ban in the United States, pending the U.S. Supreme Court’s decision regarding whether or not the law behind the ban violates the Constitution.
The app, owned by the China-based company ByteDance, is at risk due to an act that prohibits “providing services to distribute, maintain, or update” applications controlled by foreign adversary countries.
To avoid the ban enacted by the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA), TikTok would have to be sold by ByteDance before Jan. 19, according to the Associated Press.
“The act requires it to go dark unless ByteDance executes a qualified divestiture,” Noel Francisco, the lawyer representing TikTok and ByteDance in the TikTok Inc. v. Garland case, said according to transcripts.
A divestiture, or divestment is the disposal of a company unit or its assets through a sale, exchange, closure or bankruptcy, according to the Corporate Finance Institute.
A “qualified divestiture” in this case would require TikTok no longer be controlled by a foreign adversary, nor be allowed to use “content recommendation” algorithms owned by or share data with a foreign adversary, according to the PAFACA.
Francisco said the ban would remove TikTok from the app store and prohibit other service providers from hosting TikTok on their servers. This would prevent current users from further updating the app after Jan. 19.
According to Francisco, PAFACA violated TikTok’s First Amendment right to free speech saying that the act was “content-based from beginning to end” and “can’t satisfy any standard of scrutiny.”
“The government’s real target, rather, is the speech itself, its fear that Americans, even if fully informed, could be persuaded by Chinese misinformation,” Francisco said. “That, however, is a decision that the First Amendment leaves to the people.”
Francisco requested the court to consider alternate approaches to address national security concerns — asking for a less restrictive solution.
“What I’m talking about is a law that simply says, ‘To TikTok Incorporated and its U.S. employees, you cannot share that user data with anybody,’” Francisco said. “‘You can’t give it to ByteDance, you can’t give it to China, you can’t give it to Google, you can’t give it to Amazon, you cannot give it to anybody under threat of massive penalties.’”
Francisco also asked the court to consider issuing a preliminary injunction, which “is an injunction that may be granted before or during trial, with the goal of preserving the status quo before final judgment,” according to Cornell School of Law’s Legal Information Institute.
During the Jan. 10 Supreme Court hearing, justices examined the validity of Francisco’s claims and further questioned him about alleged national security risks.
“Are we supposed to ignore the fact that the ultimate parent is, in fact, subject to doing intelligence work for the Chinese government,” Chief Justice John Roberts. “It seems to me that you’re (Francisco) ignoring the major concern here of Congress, which was Chinese manipulation of the content and acquisition and harvesting of the content.”
According to Justice Brett Kavanaugh, Congress had user data security concerns involving possible scenarios where the data being shared with a foreign adversary could pose danger.
“They would use that information over time to develop spies, to turn people, to blackmail people,” Kavanaugh said. “People who, a generation from now, will be working in the FBI or the CIA or in the State.”
Justice Elena Kagan questioned whether or not free speech rights applied to ByteDance, and if the PAFACA even infringed upon these rights.
“This is not to say that the First Amendment isn’t involved because TikTok is going to suffer some pretty severe incidental effects,” Kagan said. “The statute only says to this foreign company divest or else and leaves TikTok with the ability to do what every other actor in the United States can do, which is go find the best available algorithm.”
With the app’s future being uncertain, some of its over 170 million U.S. users are seeking out alternatives similar to the app, according to the Associated Press.
Many other social media platforms have implemented their own short-form video entertainment features, including YouTube Shorts, Instagram Reels and Facebook Reels.
There has also been an emergence of other apps like RedNote, which is also China-based.
Known as Xiaohongshu in China, RedNote has seen over 700,000 new users join the app within two days, and has “surged to the top of U.S. download rankings,” Reuters says.
RedNote, having short-form video entertainment similar to TikTok, also has live chat features and online shopping, according to National Public Radio.
Along with RedNote, Lemon8, another app owned by ByteDance, has seen a vast increase in downloads. The Independent said the app is “dominated by lifestyle content,” and described it as “Instagram-meets-Pinterest.”
In the first week of January, Lemon8 reached number one on the Apple App Store and saw more than 10 million downloads from the Google Play Store, according to USAToday.
An American company can still buy TikTok before Friday’s ruling, evading an official ban, but the app still faces the potential of dying out within the next several months. The fate of the app will remain unclear until the ruling is published.
According to the New York Times, the Supreme Court has rejected the app’s First Amendment challenge, ruling against TikTok as of Jan. 17 resulting in the app being banned on Jan. 19.
Jaden Carter • Jan 16, 2025 at 10:36 pm
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