I’ve been belatedly reading Chris Miller’s Chip War, so I’m particularly attuned to U.S.-China relations around technology. Of course, the topic of Miller’s excellent book is advanced semiconductor chips, not social media apps. Nevertheless, the topic now occupying the attention of the Supreme Court and the president elect is the national security threat presented by a social media app used by an estimated 170 million U.S. users.
With Miller’s book as background I was interested when, on December 6, 2024, the D.C. Circuit Court of Appeals denied TikTok’s petitions challenging the constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act. This statute, which was signed into law on April 24, 2024, mandated that TikTok’s parent company, ByteDance Ltd., divest its ownership of TikTok within 270 days or face a nationwide ban in the United States. The law reflected Congress’s concerns that ByteDance and, by extension, the Chinese government, constituted a national security threat due to concerns about data collection and potential content manipulation.
The effect of the D.C. Circuit’s decision is that ByteDance must divest itself of TikTok by January 19, 2025, the day before the Presidential inauguration.
It took TikTok and ByteDance only ten days – until December 16, 2024 – to file with the Supreme Court an emergency motion for injunction, pending full review by the Court. And it then took the Supreme Court only two days to treat this motion as a petition for a writ of certiorari, allow the petition and put the case on the Supreme Court version of a “rocket docket” – briefing must be completed by January 3, 2025, and the Court will hear oral argument on January 10th, giving it plenty of time to decide the issue in the nine days left until January 19th.
Enter Donald Trump. In a surprising twist, the former president – who initially tried to ban TikTok in 2020 – has filed an amicus brief opposing an immediate ban. He contends that the January 19th deadline improperly constrains his incoming administration’s foreign policy powers, and he wants time to negotiate a solution balancing security and speech rights:
President Trump is one of the most powerful, prolific, and influential users of social media in history. Consistent with his commanding presence in this area, President Trump currently has 14.7 million followers on TikTok with whom he actively communicates, allowing him to evaluate TikTok’s importance as a unique medium for freedom of expression, including core political speech. Indeed, President Trump and his rival both used TikTok to connect with voters during the recent Presidential election campaign, with President Trump doing so much more effectively. . . .
[Staying the statutory deadline] would . . . allow President Trump’s Administration the opportunity to pursue a negotiated resolution that, if successful, would obviate the need for this Court to decide these questions.
Trump Amicus Brief, pp. 2, 9
The legal issues are novel and significant. The D.C. Circuit applied strict scrutiny but gave heavy deference to national security concerns while spending little time on users’ speech interests. Trump raises additional separation of powers questions about Congress dictating national security decisions and mandating specific executive branch procedures.
This case isn’t just about one app. The case reflects deeper tensions over Chinese technological influence, data privacy, and government control of social media. The Court’s decision will likely shape how we regulate foreign-owned platforms while protecting constitutional rights in an interconnected world.
The January 10th arguments – if indeed they go forward on that date, given that president-elect Trump prefers they not – should be fascinating. At stake is not just TikTok’s fate, but precedent for how courts balance national security claims against free speech in the digital age.
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Addendum:
The highly expedited schedule kept a lot of lawyers busy over the holidays. You can access the docket here. I count 22 amicus briefs, most filed on December 27. Reply briefs are due January 3.