2025 begins with a hot topic in digital law: the threat to ban Tiktok in the United States («US»), which led to the temporary suspension of its services in that country for around 12 hours.
The complex relationship between the US and Tiktok dates to 2020, when the first measures were taken in response to national security concerns raised by the connection between the Chinese state and Tiktok, and its implications. Although Tiktok operates in the US through an American company (TikTok Inc.), its ultimate parent company is ByteDance Ltd., a privately held company that has operations in China. ByteDance Ltd. is subject to Chinese laws that require it to “assist or cooperate” with the Chinese Government's “intelligence work” and to ensure that the Chinese Government “has the power to access and control the private data” the company holds.
In April 2024, the issue gained momentum when Congress passed the Protecting Americans from Foreign Adversary Controlled Applications Act («Protecting Americans Act»). As of January 19, the Protecting Americans Act will make it unlawful for companies in the US to provide services to distribute, maintain, or update Tiktok , unless US operation of the platform is severed from Chinese control. In other words, Tiktokmust be sold, or its operation will be jeopardized to the point of being effectively banned from the US.
ByteDance Ltd. and TikTok Inc. took their case to court, challenging the constitutionality of the Act. The issue reached the US Supreme Court in late 2024, and on 10 January 2025 the Court ruled that the Protecting Americans Act did not violate the First Amendment (TikTok Inc. v. Garland).
The Supreme Court first noted that both the challenged provisions and the rationale behind them were content neutral. The provisions at issue do not target a particular speech based upon its content. On the contrary, they impose specific prohibitions due to a foreign adversary’s control over the platform and make divestiture a prerequisite for the platform’s continued operation in the United States. On the other hand, these prohibitions are designed to prevent the Chinese state from collecting large amounts of sensitive data from TikTok's 170 million US users. The Supreme Court stated that such rationale is content-agnostic, as it makes no reference to the speech content of speech on TikTok nor reflects any disagreement with the message such a speech conveys.
Having clarified this point, the Supreme Court recalled that ByteDance Ltd. owns TikTok’s proprietary algorithm, which is developed and maintained in China, and is also responsible for developing parts of the source code that runs the TikTok platform.
In the light of the foregoing, the Court concludes that the differential treatment of the TikTok platform is justified. According to the Court, although data collection and analysis is a common practice in the digital age, the scale and susceptibility to «foreign adversary» control, together with the vast amount of sensitive data that the platform collects, justifies differential treatment to respond to the government's national security concerns. In the Supreme Court’s view, a law with a different target would require a different analysis. In this case, however, the Supreme Court held that the Protecting Americans Act satisfies intermediate scrutiny. The challenged provisions further an important Government interest unrelated to the suppression of free expression and do not burden substantially more speech than necessary to further that interest.
As a result, Tiktok temporarily suspended its services in the US on 18 January 2025. Services were restored the following day after President-elect Donald Trump said he would revive Tiktok’s access once he took office. On 20 January, President Trump issued an Executive order that halted enforcement of the Act for a 75-day period.
Several important questions arise from the events of recent weeks. From a legal point of view, both the Protecting Americans Act and the subsequent Supreme Court decision are at odds with the liberal, freedom of expression-based perspective that the US usually adopts when it comes to digital regulation. It is therefore surprising that the US – and not the European Union – is at the forefront of a particularly restrictive measure on freedom of speech on the grounds of national security. On the other hand, there are doubts about the constitutionality of the Executive order, since it is not clear whether a President has the power to halt enforcement of a federal law.
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