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Trump team urges US Supreme Court to halt looming TikTok ban

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Saturday, December 28, 2024

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Image: Office of the President of Ukraine.
Wikipedia research indicating worldwide availability of TikTok. Countries coloured red enforce a ban on the app for all citizens, and those coloured blue have it banned on government devices.
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The lawyer of United States president-elect Donald Trump yesterday urged the Supreme Court to pause enforcement of a law which could ban TikTok to enable him "to pursue a political resolution".

In an amicus curiae brief, D. John Sauer, whom Trump has tapped as his nominee for solicitor general, wrote the president-elect "respectfully requests that the Court consider staying the Act's deadline for divestment of January 19, 2025, while it considers the merits of this case, thus permitting President Trump's incoming administration the opportunity to pursue a political resolution of the questions at issue in the case".

In April, US Congress passed, and President Joe Biden signed, a bipartisan measure which would force TikTok's Chinese parent company ByteDance to either sell the popular social media app to an American company or face an effective ban on its use in the US 270 days after passage.

As no potential buyer has materialised, a ban on TikTok's distribution in US app stores and internet service providers is set to enter effect on January 19, one day before Trump's inauguration.

Since then, TikTok has lodged multiple unsuccessful lawsuits against the Protecting Americans from Foreign Adversary Controlled Applications Act, arguing that it violates the right to free speech granted in the First Amendment to the US Constitution.

Last Wednesday, the nation's top court agreed to hear an appeal on an unusually expedited schedule, with oral arguments to begin January 10.

However, it refused TikTok's request to issue an emergency injunction, leaving just over a week for justices to issue a ruling.

In its own filing yesterday, the US Justice Department argued the law was specifically written to target national security threats associated with "foreign-adversary control of TikTok: namely, the collection of sensitive data of U.S. persons and malign foreign influence of the platform targeting U.S. persons", and "at most incidentally burdens protected speech."

The Biden administration warned that China "could covertly manipulate the platform to advance its geopolitical interests and harm the United States — by, for example, sowing discord and disinformation during a crisis."

Another supportive brief by 22 state attorneys general, led by Montana's Austin Knudsen and Virginia's Jason Miyares, added that due to TikTok's "core technology and infrastructure" being ultimately controlled by the Chinese Communist Party (CCP), it may allow the Party "to track the realtime locations of public officials, journalists, and other individuals adverse to the Chinese Communist Party’s interests."

However, TikTok has argued that it has worked to address the Justice Department's concerns, stating its user data was stored in US data servers managed by Texas-based Oracle Corporation, and that it makes all content moderation decisions which affect American users in the US.

The company also criticised how the Act was passed through Congress based upon "flawed and hypothetical information", "[history] and precedent teach that, even when national security is at stake, speech bans must be Congress’s last resort."

Free speech organisations supporting TikTok in briefs compared the Act with those passed by dictatorships, with the Knight First Amendment Institute at Columbia University arguing: "Restricting access to foreign media to protect against purported foreign manipulation is a practice that has long been associated with repressive regimes [...] The government has no legitimate interest in banning Americans from accessing foreign speech — even if the speech comprises foreign propaganda or reflects foreign manipulation."

The Chinese government itself has also consistently denied that the app threatens US security.

Earlier this month, the federal appeals court for Washington, D.C. ruled the government had presented "persuasive evidence" of the law's narrow focus.

However, a brief headlined by the American Civil Liberties Union argued the three-justice panel was too generous with the Act, which "triggers and fails the most exacting scrutiny under the First Amendment."

Though Trump's brief, his first since winning the presidential election in November, remains neutral "on the underlying merits of this dispute", it maintains he "opposes banning TikTok in the United States at this juncture".

This is a shift from Trump's hawkish position in 2020, when he signed an executive order banning it and other apps like WeChat and AliPay, which got tied up in legal disputes and ultimately was revoked by Biden in June 2021 in favour of a formal investigation.

Since then, however, Trump has said he has a "warm spot in my heart for TikTok", and credited the app with his increased popularity among youth voters, including falsely claiming a majority had voted for him in the November election. In June, Trump's campaign created a TikTok account that within days dwarfed the follower and like count of the account of then-opponent Biden.

CNN has also reported that Trump met with TikTok CEO Shou Zi Chew this month hours after making those complimentary remarks, and that Chew further spoke with Trump yesterday evening after the brief was filed.

Sauer's text mentions that "President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the Government".

However, the law's "unfortunate timing [January 19 deadline] interferes with President Trump’s ability to manage the United States' foreign policy and to pursue a resolution to both protect national security and save a social-media platform that provides a popular vehicle for 170 million Americans to exercise their core First Amendment rights."

Therefore, by affording Trump the time to liaise with lawmakers, the Court may "obviate the need [...] to decide the historically challenging First Amendment question".

However, the ban has support from politicians of both parties, including both the chair and ranking member of the House Select Committee on the CCP, and members of Trump's first administration, such as former Vice President Mike Pence, attorney general Jeff Sessions and Federal Communications Commission chair Ajit Pai.

Both sides have until Friday to reply to the other's brief.


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