Think China won’t get a hold of the personal data collected by TikTok? Think again, the US government told the Supreme Court on Friday. The feds say that Beijing has already been proven to have dipped into ByteDance's massive data coffers to spy on its foreign adversaries, and you could be next.
The latest national security vs free speech showdown between the US government and TikTok took place in front of the nine US Supreme Court Justices on Capital Hill, kicking off at 10:00 a.m. ET on Friday.
Oral arguments were heard from both sides as to why TikTok’s parent company, the Chinese-owned ByteDance, should (or should not) be exempt from a January 19th deadline to divest from the “independently” operated US TikTok – a potential security risk due to the swaths of data it collects on American citizens.
It’s no accident the word ‘independently’ was put in quotes here.
Although ByteDance and its TikTok US subsidiary, including the apps’ CEO Shou Zi Chew, have publicly sworn up and down neither entity is beholden to its home government in Beijing, US Solicitor General Elizabeth Prelogar laid out a succinct list of federally recorded instances proving the exact opposite.
🏛🗓️ HAPPENING TODAY at 10am EST: #SCOTUS will hear our challenge to the TikTok ban as we fight this unprecedented government censorship that threatens the #1A rights of our clients, BASED Politics, & millions of American users.
undefined Liberty Justice Center (@LJCenter) January 10, 2025
🎧LISTEN LIVE: https://t.co/clhWFpxiqz pic.twitter.com/bJnHVlM9Xb
Rattling off several examples in her closing arguments – ironically, in what a TikTok creator would consider the optimal length for a clip to go viral on the platform – Prelogar basically poo-pooed TikTok’s claims of keeping American’s data safe as wishful thinking.
Putting aside President-elect Donald Trump’s latest love-fest with the app, his inauguration taking place only one day after TikTok's ‘divest or ban’ D-Day, and that billionaire investor and former LA Dodgers owner Frank McCourt may swoop in at the last minute with an offer to buy the platform, let's get into it.
US: ByteDance has handed over info to Beijing before
Bolstering the Biden administration’s argument that national security Trumps everything China (see what I did here), Prelogar said preventing the PRC from unfettered access to the sensitive information of 170 million Americans using the platform is paramount, especially for those underage TikTok users who can’t see the forest through the trees, so to speak.
“There are a lot of teenagers using TikTok today who might ignore a warning like that and not really care, but they're going to grow up, and they might become members of our military. They might become senior government officials,” she said.
“For the Chinese government to have this vast trove of incredibly sensitive data about them. I think it obviously exposes our nation as a whole,” the top US litigator said.
Besides tracking user interactions with the platform, ByteDance and TikTok have been collecting excessive amounts of other data, including names, addresses, credit card and purchase information, device and network information, location and GPS location data, biometric identifiers, keystroke patterns, behavioral data, the user's contacts, both on and offline user activities, as well as data and activity from other linked apps.
"So they apparently go into your social media apps and suck up all of the information," Preloger said.
Stressing “complete justification for the law,” Prelogar also reminded the courts that it’s not just espionage, blackmail, and extortion Americans face from Beijing, but also the matter of “covert content manipulation” that TikTok’s algorithms foist on young adults here in the US, as compared to the content teens in China are allowed to consume on the app.
Prelogar and Washington have admitted that, to date, there is no evidence that ByteDance or its subsidiary has allowed Beijing access to its data. However, the US fears that China could exercise its "overwhelming power" against TikTok at any time to do its bidding.
And, it seems ByteDance has manipulated the platform in the past, said Prelogar, who brought up several instances in her closing argument when ByteDance seemingly succumbed to the demands of the communist regime.
“There is evidence ByteDance has taken action to misuse data at the PRC's request outside of China,” she said, noting that the details were all on Congressional record.
“We know that ByteDance has misappropriated US data with respect to surveilling of US journalists,” she continued, referring to a 2022 incident the company publicly admitted to.
In the instance, an undisclosed number of ByteDance employees, allegedly since fired, were said to have used data from TikTok to spy on reporters from the Financial Times, BuzzFeed, and others, to try and source media leaks within their own company.
The US Solicitor General further mentioned efforts by the People’s Republic of China to “track dissidents and protesters in Hong Kong and to track Uighurs in China itself.”
“There is also evidence in the record that ByteDance has been asked by the PRC to undertake efforts to censor content and manipulate the platform at the behest of the Chinese government,” she said.
TikTok’s last stand
ByteDance and TikTok lawyer Noel Francisco argued for free speech protections admirably, yet seemed to pale in comparison to the plethora of examples given by Washington to bolster its security concerns.
Possibly sensing a lost cause and scrambling for an alternative solution, Francisco asked the court, if all else fails, to grant a preliminary injunction to delay the bipartisan law Congress passed last April to force a TikTok sale. At one point, he complained that ByteDance had not been given ample time to procure a divestiture deal in the 270 days allotted by the Biden administration.
Prelogar dismissed the lawyer's last-minute excuse in a bid for more time, pointing out that X-owner Elon Musk was able to complete the purchase of then-Twiitter in 2022 from "offer to completion" in about six months. "They've been on notice since 2020," she said.
Even liberal Justice Elena Kagan told Francisco that the law was “only targeted” at Bytedance, a foreign corporation, which she explained “doesn't have First Amendment rights."
Conservative Justice John Roberts further posed the question, "Are we supposed to ignore the fact that the ultimate parent is, in fact, subject to doing intelligence work for the Chinese government? 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."
Francisco argued that “this fear that Americans, even if fully informed, could be persuaded by Chinese misinformation…is at war with the First Amendment itself.”
“If the First Amendment means anything, it means that the government cannot restrict speech in order to protect us from speech. That's precisely what this law does,” he said in the final statement of the roughly two-hour hearing.
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