Will the U.S. Supreme Court reverse the law Congress passed to divest TikTok from its Chinese parent, ByteDance?
The U.S. Supreme Court heard oral arguments today on the constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA), which could ban TikTok in the United States unless its Chinese parent company, ByteDance, divests by January 19, 2025.
The law, passed with overwhelming bipartisan support in the House by a vote of 352–65, mandates that ByteDance sell its stake in TikTok or face a ban on U.S. app stores. TikTok argues that the law violates First Amendment rights and claims divestiture is infeasible due to technological and commercial constraints. The company emphasizes the lack of concrete evidence of Chinese interference or data misuse.
Conversely, the U.S. government contends that the law is narrowly tailored to address national security concerns without directly targeting user speech. During the hearing, Justices probed several key issues, including the appropriate level of constitutional scrutiny for the Act, the lack of concrete evidence of Chinese interference, the practicality of divestiture, and the scope of Congressional authority in regulating foreign-owned media platforms.
At the heart of this case is the control of proprietary algorithms and software residing with the Chinese parent ByteDance which are firmly under China’s control.
“You began by saying this is a U.S. company operating in the U.S., but the ultimate company that controls it ByteDance was found by Congress ‘to be subject to Chinese laws that require it assist or cooperate with the Chinese government’s intelligence work,’” Chief Justice John Roberts told TikTok’s lawyer Noel Francisco early on. “It seems to me that you’re ignoring the major concern here of Congress, which was Chinese manipulation of the content and acquisition and harvesting of the content.”
The Court’s decision, expected later this year, will have far-reaching implications for technology regulation and free speech in the digital age. If the Supreme Court upholds the ban, app stores would be prohibited from distributing TikTok, preventing updates for existing users and downloads for new users. Internet hosting companies would also be barred from supporting the app. The ban would be lifted if ByteDance divests from TikTok.
Interestingly, President-elect Donald Trump has asked the Supreme Court to delay the ban’s implementation. Trump, who takes no position on the merits of the case, argues that a court-ordered delay would give his incoming administration time to negotiate a resolution that addresses national security concerns while preserving the platform. He claims that his “consummate dealmaking expertise” and “political will” make him uniquely suited to resolve the issue.