Opinion - The clock is running out on TikTok in the US

Free speech clashed with national security before a federal appeals court in Washington, D.C., which unanimously held last Friday that the TikTok app can be banned in the U.S.

The court upheld a law known as the Protecting Americans from Foreign Adversary Controlled Applications Act, requiring the social media app to divest its Chinese ownership if it wants to keep operating. It was “precisely” because of TikTok’s “expansive reach” that both Congress and the president determined that divesting it from China’s control “is essential to protect our national security,” the judges wrote.

The sell-or-ban law, signed by President Biden in April, passed with bipartisan support after Congress received classified briefings from the intelligence community about China’s ability to use TikTok to surveil Americans and spread Chinese propaganda.

TikTok has operated in the U.S. since 2018. It instantly exploded in popularity, with its short-form video format, content-recommendation formula and easy editing features. It is now the fifth-most widely used social-media platform in the U.S.

The ban doesn’t criminalize the use of the app by TikTok’s 170 million U.S. fans. But it prohibits mobile app stores, from letting users download or update it, and bars internet hosting services from supporting the app, effectively shutting TikTok down in the U.S.

The decision, relying heavily on U.S. warnings that Beijing can use the app’s parent company, China’s ByteDance, to access U.S. users’ data, found that national security trumped TikTok’s free speech rights.

The First Amendment “exists to protect free speech in the United States,” Judge Douglas Ginsburg wrote for the three-judge panel. “Here the Government acted solely to protect that freedom from a foreign adversary nation.”

Attorney General Merrick Garland praised the decision as “an important step in blocking the Chinese government from weaponizing TikTok to collect sensitive information about millions of Americans, to covertly manipulate the content delivered to American audiences, and to undermine our national security.”

ByteDance has said it can’t and won’t sell its U.S. operations. The Chinese government has opposed a forced sale, preferring to keep TikTok’s proprietary algorithm and source code under Chinese control.

President-elect Donald Trump’s return to the White House adds a layer of uncertainty to what happens next. Trump sought to restrict TikTok in his first term, but he muddied his position earlier this year, expressing concern that a ban would shift users to rival Facebook.

TikTok aficionados have largely believed that TikTok will somehow keep operating in the U.S., though some content creators are considering what they’ll do if it doesn’t.

“That would suck,” Mario Riveira, a full-time creator in San Francisco with more than 300,000 TikTok followers, told the Wall Street Journal. His posts are mainly humor videos featuring man-on-the-street interviews he conducts with strangers. “I would have to go harder on other platforms like YouTube and Instagram,” said Riveira.

The elimination of TikTok in the U.S. would be a landmark in the geopolitical contretemps over control of internet media and user data. Gmail, Google, Facebook, Instagram, YouTube and X are all blocked in China under its “Great Firewall” censorship regime. No First Amendment in China. But this is the first time the U.S. cut off access to a foreign social-media giant.

TikTok had earlier tried to assuage national security concerns by spending billions of dollars on a move known as “Project Texas” aimed to cabin U.S. user data in country. Many of the Project Texas data protections, however, “devolved into what one employee called ‘a wink and a nod.’”

Ginsburg acknowledged that the court’s decision had “serious implications” for TikTok users but said “that burden is attributable to [China’s] hybrid commercial threat to U.S. national security, not to the U.S. Government, which engaged with TikTok through a multiyear process in an effort to find an alternative solution.”

The opinion said the U.S. presence of TikTok could enable the Chinese to engage in hacking operations targeting U.S. firms such as Equifax and the U.S. Office of Personnel Management. Access to TikTok user data could also allow the Chinese government to track the locations of federal employees and contractors or build personal dossiers for blackmail.

The court said the threats posed by content manipulation were no less serious, because China could distort public discourse for its own ends. China’s “ability to do so is at odds with free speech fundamentals.”

The wild card in the case are the views of Donald Trump after Jan. 20. He could refuse to enforce the ban or take other measures to keep TikTok going. Trump backed a ban during his first administration, but he is now expected to halt it. “I am optimistic that President Trump will allow [TikTok’s continued use in the U.S.…],” said Rep. John Moolenaar (R-Mich.), chairman of the House Select Committee on the Chinese Communist Party.

The former president has said Facebook is a bigger threat to the American public, saying “it will only get bigger and stronger if TikTok is taken out.” The Meta-owned app suspended Trump in 2021 and restored his account in 2023.

Trump went on TikTok during the campaign, and used it to reach younger audiences. He appears to have more than 14 million followers on the app.

The ban’s terms are set to take effect in mid-January. TikTok is expected to go to the Supreme Court, but the justices have unfettered discretion as to whether to take the case.

“The Supreme Court has an established historical record of protecting Americans’ right to free speech and we expect they will do just that on this important constitutional issue,” said TikTok spokesman Michael Hughes. He criticized the ban-or-sale law, saying it was based on “inaccurate” information and was “resulting in the outright censorship of the American people.”

Of course, there is no telling what the Supreme Court will do. Free speech is a precious value in the Constitution. Our national security is also precious, and the Constitution can never be a suicide pact.

James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.

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