The company that owns TikTok goes to the U.S. Supreme Court on Friday to try to fend off a new law that would see the wildly popular social media app banned later this month.
The law would prohibit companies such as Apple and Google from making TikTok available to users in the United States unless its China-based parent company, ByteDance, sells it.
The ban is due to take effect on Jan. 19, the day before Donald Trump’s inauguration as president.
The U.S. top court is hearing ByteDance’s last-ditch attempt to get the ban tossed out as unconstitutional.
Here’s what you need to know.
Why do U.S. lawmakers want to ban TikTok?
The U.S. government sees TikTok’s Chinese ownership as a “grave threat to national security” because the Chinese government has the power to compel ByteDance to hand over user data and because of the fear that China could use TikTok’s powerful algorithm to spread disinformation.
“TikTok’s collection of reams of sensitive data about 170 million Americans and their contacts makes it a powerful tool for espionage, and TikTok’s role as a key channel of communication makes it a potent weapon for covert influence operations,” U.S. Solicitor General Elizabeth Prelogar wrote in a government brief to the court.
The government argues that the law does not intend to restrict the free speech of users but instead aims to end a foreign adversary’s control of TikTok.
How would the ban work?
The law would ban TikTok in the U.S. if ByteDance fails to divest its ownership of the app and sell it to a non-Chinese company by Jan. 19.
It makes it unlawful for anyone to “distribute, maintain, or update” the app in the U.S. and carries the threat of steep fines of up to $5,000 per user against anyone who breaks the law.
This means it wouldn’t immediately affect anyone who has already downloaded TikTok, but the app stores would no longer be permitted to carry TikTok in the U.S., and users would be unable to get upgrades or newer versions of the app.
Congress passed the bill last year with strong bipartisan support in both the House of Representatives and the Senate, before President Joe Biden signed it into law.
The U.S. House of Representatives has passed a bill that would lead to a nationwide ban on TikTok if its Chinese parent company, ByteDance, doesn’t sell it. The bill is likely to hit a roadblock in the Senate, however.
What will the Supreme Court case hinge on?
The case amounts to a clash between two fundamental principles of U.S. law: the First Amendment right to free speech versus the government’s authority to determine national security concerns, said Gus Hurwitz, academic director of the Center for Technology, Innovation and Competition at the University of Pennsylvania’s Carey Law School in Philadelphia.
Hurwitz said ByteDance’s position is that the intended effect of the law is to stop the company from speaking to Americans.
“The company is making a pretty straightforward First Amendment-style argument here, that they are a speech platform, that in many ways they are no different from a newspaper, a magazine, any other website,” Hurwitz said in an interview with CBC News.
Freddy Tran Nager, associate director of the digital social media program at the University of Southern California, Annenberg, said ByteDance’s argument is “a little thin.”
“This legislation does not ban TikTok based on its content,” Nager said in an interview. “The concerns are over data privacy, specifically the data of American citizens.”
Can the U.S. legally force ownership change on TikTok?
The U.S. has a long history of restricting foreign ownership of broadcast outlets such as radio stations and television networks, but restricting ownership of a social media platform is a new frontier.
Kate Ruane, director of the free expression project at the Center for Democracy and Technology in Washington, D.C., described the law as unprecedented.
“Banning an entire speech platform within the United States is a violation of the constitution of the highest order,” Ruane said in an interview.
“It prevents 170 million TikTok users from using the medium of their choice to communicate online in ways that have nothing to do with the government’s stated concerns,” she said.
The ban could be averted if ByteDance begins negotiations to sell the app to a non-Chinese owner, but the company has not given any indication that’s happening.
TikTok is suing the U.S. government over a law that would ban the Chinese-owned app unless it’s sold to another company. Andrew Chang breaks down TikTok’s legal argument and why it says its First Amendment rights are being violated.
What’s the timeline for a ruling?
The Supreme Court agreed to an expedited hearing of the case, given the law’s looming Jan. 19 implementation date.
“I expect that if the court is going to side with TikTok, we will hear very quickly,” likely next week, Hurwitz said. “If an injunction isn’t immediately issued … I would interpret that silence to mean with very high confidence that the court is going to decide against TikTok.”
What happens once Donald Trump takes office?
Trump’s inauguration take place on Jan. 20, one day after the ban is scheduled to take effect. After favouring a ban on TikTok during his first term, he has changed his tune. Trump now wants the law halted, and his lawyers filed a “friend of the court” brief on his behalf ahead of Friday’s hearing.
“President Trump opposes banning TikTok in the United States at this juncture, and seeks the ability to resolve the issues at hand through political means once he takes office,” the brief says.
Nager said he suspects the incoming Trump administration “would like to have TikTok as part of a larger package of negotiations [with China], whether it’s tariffs or other imports or other military agreements.”
Trump could issue an executive order that postpones enforcement of the law, Hurwitz said, but added that in the long term, it’s unlikely the new president would use up political capital trying to get the law overturned when so many Republican lawmakers are firmly opposed to Chinese ownership of the app.
Would Canada be affected?
The prohibition on distributing TikTok applies only to entities in the U.S.
Separately, the federal government ordered TikTok in November to cease its business operations in Canada, but it is not restricting the app’s availability.
