<em> TikTok Inc. v. Garland: </em> The Supreme Court’s Restriction on Foreign-Owned Intellectual Property
A controversial U.S. Supreme Court decision upheld the Protecting Americans from Foreign Adversary Controlled Applications Act and determined that the forced divestiture, or otherwise ban, of TikTok is justified in the name of national security.
Attribution
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A Chinese-based technology firm, ByteDance Ltd., developed and launched an innovative social media application named TikTok nearly ten years ago. The app has since attracted 170 million users who create, publish, view, share, and interact with short videos overlaid with audio and text. TikTok’s rapid success lies in its “For You” page, which utilizes an algorithm that delivers curated content in accordance with a user’s likes, comments, follows, and time spent watching certain videos.
In 2019, U.S. politicians raised concerns about the app’s influence and potential threats to national security. By virtue of an executive order, President Trump led the effort to ban TikTok during his first presidential term. Subsequently, President Trump ordered ByteDance Ltd. to divest all interests and rights in any property used to facilitate the company’s operation of the app in the United States. Amid these measures, Congress enacted the Protecting Americans from Foreign Adversary Controlled Applications Act (“the Act”). Specifically, the Act prohibited any entity from providing certain services that “distribute, maintain, or update” a “foreign adversary controlled application” in the United States, namely TikTok.
The petitioners, TikTok Inc., ByteDance Ltd., and a group of domestic TikTok users, filed suit in the U.S. Court of Appeals for the District of Columbia Circuit Court challenging the constitutionality of the Act. Among their arguments, the petitioners asserted that the Act effectively bans the app within the United States and thus impinges upon the free speech rights of both TikTok as a platform and its individual users.
The petitioners noted TikTok’s unique role as a platform that facilitates speech and communication for millions of Americans, including that which is critical of the United States government. Considering various large technology companies that are permitted to operate despite similar data collective practices, the petitioners note that the Act unfairly singles out TikTok. Further, petitioners unveil a series of less restrictive alternatives such as data localization, transparency and audit mechanisms, and a national security agreement with the United States government. Petitioners also highlight the improbability that China will misuse TikTok user data for intelligence-gathering purposes, especially considering the existence of more effective and efficient means to do so.
The United States government, represented by Attorney General Merrick Garland, asserted that the Act is crucial to protect national security. More specifically, Garland outlined that the Act prevents China from acquiring millions of user’s sensitive data and engaging in espionage. The government separately raised concerns that the Chinese government could order ByteDance Ltd. to “covertly manipulate” the content that U.S. users view, or demand access to said users’ sensitive data collected by the app. The Act is argued to be content-neutral as it targets TikTok due to its foreign ownership and control rather than the nature of its content. Garland justifies the app’s differential treatment due to its unprecedented access to user data and ByteDance Ltd.’s susceptibility to be controlled by the Chinese government and laws. Further, Garland refutes the notion of the Act as an outright ban of the app because a divestiture option would allow continued operations in the United States, thus claiming the Act is narrowly tailored.
The D.C. Circuit upheld the Act and the Supreme Court swiftly granted certiorari. Ultimately, the Court affirmed the D.C. Circuit’s judgment in favor of Garland. The Court rejected the argument that the Act targets speech and instead found it regulates foreign adversary control over a platform with access to vast amounts of sensitive data. The Court determined the Act serves a compelling national security interest when considering China’s years-long history of efforts to obtain intelligence on U.S. citizens. Finally, the Court agreed that the option of divestiture proved the Act is narrowly tailored and that Congress’ judgment must receive deference in national security matters.
The Supreme Court’s decision effectively bans a major online platform used by millions for political, social, and personal expression, raising national concerns about government overreach. Fundamentally, the significant implications of the Court’s ruling in TikTok Inc. v. Garland set a precedent for global censorship and government-mandated divestitures of foreign-owned intellectual property.