The American Supreme Court examines on Friday January 10 the fate of the very popular social network TikTok, threatened with imminent ban in the United States, if its Chinese parent company refuses to sell it, as required by a recent law. In the midst of a strategic confrontation between the United States and China, the American Congress adopted this law in April by a large majority – bringing together Democratic and Republican elected officials. It aims to prevent the risks of espionage and manipulation by the Chinese authorities of TikTok users, which claims 170 million in the United States.
The law, immediately promulgated by President Joe Biden, sets a deadline of January 19 for the parent company of the social network, ByteDance, to transfer the application to another owner. TikTok and ByteDance, but also organizations defending freedom of expression, claim that it contravenes the First Amendment of the American Constitution guaranteeing this freedom. This is the question that will have to be decided by the nine judges of the Supreme Court with a conservative majority, whom President-elect Donald Trump has expressly asked to block this ban. The Court agreed in December to take up the law, but without suspending it as requested by TikTok and Bytedance.
“Espionage”
“No one can seriously dispute that the Chinese Communist Party’s control of TikTok through ByteDance represents a serious threat to national security,” Biden administration legal advisor Elizabeth Prelogar says in her written arguments. “TikTok’s accumulation of masses of sensitive data on nearly 170 million Americans and their contacts makes it a powerful espionage tool,” she adds, arguing that “the law aims for control by an adversary foreigner and not freedom of expression.
For his part, Timothy Edgar, a former US national security and intelligence official, believes that this is “the most important free speech case in at least a generation […]. Considering there are 170 million active monthly TikTok users in the United States, the amount of free speech at stake is the largest in U.S. Supreme Court history. – he from the press agency Reuters.
The social network has repeatedly denied having transmitted information to the Chinese government and assured that it would refuse any possible request in this regard. Its lawyers claim that the law is “unconstitutional” because it exclusively targets TikTok and are asking the Court to at least suspend its entry into force in order to rule on this question.
Quarrel among the Republicans
The company also knows that it can count on the sympathy of President-elect Donald Trump, who will take office on January 20 and has confided that he has a “soft spot” for TikTok. Donald Trump, who received TikTok boss Shou Zi Chew in December at his Florida residence, Mar-a-lago, in an unusual intervention asked the Court to suspend the law to give him time, once at home. White House, to “seek a negotiated outcome that would avoid a nationwide shutdown of TikTok.”
In contrast, many Republican lawmakers and officials are lobbying the Court, whose conservative majority includes three justices appointed by Donald Trump during his first term. Republican attorneys general from 22 states filed a brief with the court, disagreeing with TikTok’s arguments and asking the judges to uphold the law. “Allowing TikTok to operate in the United States without severing its ties to the Chinese Communist Party puts Americans at risk of the Chinese Communist Party accessing and exploiting their data,” these officials wrote, as cited by Reuters. Mitch McConnell, former Republican leader of the Senate, for his part compared the TikTok trial to that of a hardened criminal seeking a “stay of execution”.
However, Donald Trump himself tried to ban TikTok in the summer of 2020, during his first term, through decrees which were unsuccessful. He has since changed his mind, calling on voters attached to the service to vote for him. The Republican sees in TikTok an alternative to Facebook and Instagram, the two Meta platforms, which had temporarily excluded him after his support for the participants in the assault on the Capitol on January 6, 2021.
Potential buyers
One of the solutions envisaged in the event of the law being maintained would be for ByteDance to resell its shares to non-Chinese investors, a possibility that the company has constantly rejected. But several potential buyers have nevertheless come forward, notably the American billionaire Frank McCourt, who campaigns for safer social networks through his organization, Liberty Project. “We have presented a proposal to ByteDance” to buy TikTok in the United States, Frank McCourt announced Thursday in a press release.
If the Supreme Court were to ban the social network, it would set a precedent in the United States and around the world, with repercussions on other digital platforms: “The American government will be on solid ground if it chooses to regulate or “ban any digital platform involving substantial participation by foreign investors,” said Timothy Edgar, who believes that the Russian application Telegram could be “next” on the list.