
Supreme Court Decision on TikTok
17 January 2025
EXCERPTS
The platform collects extensive personal information from and about its users. (Public reporting has suggested that TikTok’s “data collection practices extend to age, phone number, precise location, internet address, device used, phone contacts, social network connections, the content of private messages sent through the application, and videos watched.”); (Draft National Security Agreement noting that TikTok collects user data, user content, behavioral data (including “keystroke patterns and rhythms”), and device and network data (including device contacts and calendars)).
If, for example, a user allows TikTok access to the user’s phone contact list to connect with others on the platform, TikTok can access “any data stored in the user’s contact list,” including names, contact information, contact photos, job titles, and notes. Access to such detailed information about U. S. users, the Government worries, may enable “China to track the locations of Federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage.” And Chinese law enables China to require companies to surrender data to the government, “making companies headquartered there an espionage tool” of China.
Here, the Government’s TikTok-related data collection concerns do not exist in isolation. The record reflects that China “has engaged in extensive and years long efforts to accumulate structured datasets, in particular on U. S. persons, to support its intelligence and counterintelligence operations.”
In addition to the data collection concerns addressed above, the Government asserts an interest in preventing a foreign adversary from having control over the recommendation algorithm that runs a widely used U. S. communications platform, and from being able to wield that control to alter the content on the platform in an undetectable manner.
To start, the House Report focuses overwhelmingly on the Government’s data collection concerns, noting the “breadth” of TikTok’s data collection, “the difficulty in assessing precisely which categories of data” the platform collects, the “tight interlinkages” between TikTok and the Chinese Government, and the Chinese Government’s ability to “coerc[e]” companies in China to “provid[e] data.” (recounting a five-year record of Government actions raising and attempting to address those very concerns). Indeed, it does not appear that any legislator disputed the national security risks associated with TikTok’s data collection practices, and nothing in the legislative record suggests that data collection was anything but an overriding congressional concern. We are especially wary of parsing Congress’s motives on this record with regard to an Act passed with striking bipartisan support.
The Government has explained that ByteDance Ltd. uses the data it collects to train the TikTok recommendation algorithm, which is developed and maintained in China. According to the Government, ByteDance Ltd. has previously declined to agree to stop collecting U. S. user data or sending that data to China to train the algorithm. The Government has further noted the
difficulties associated with monitoring data sharing between ByteDance Ltd. and TikTok Inc. Under these circumstances, we find the Government’s data collection justification sufficient to sustain the challenged provisions.
There is no doubt that, for more than 170 million Americans, TikTok offers a distinctive and expansive outlet for expression, means of engagement, and source of community. But Congress has determined that divestiture is necessary to address its well-supported national security concerns regarding TikTok’s data collection practices and relationship with a foreign adversary. For the foregoing reasons, we conclude that the challenged provisions do not violate petitioners’ First Amendment rights. The judgment of the United States Court of Appeals for the District of Columbia Circuit is affirmed. It is so ordered.
GORSUCH, J., concurring in judgment excerpt: The record before us establishes that TikTok mines data both from TikTok users and about millions of others who do not consent to share their information. According to the Federal Bureau of Investigation, TikTok can access “any data” stored in a consenting user’s “contact list”—including names, photos, and other personal information about unconsenting third parties. Ibid. (emphasis added). And because the record shows that the People’s Republic of China (PRC) can require TikTok’s parent company “to cooperate with [its] efforts to obtain personal data,” there is little to stop all that information from ending up in the hands of a designated foreign adversary. The PRC may then use that information to “build dossiers . . . for blackmail,” “conduct corporate espionage,” or advance intelligence operations. To be sure, assessing exactly what a foreign adversary may do in the future implicates “delicate” and “complex” judgments about foreign affairs and requires “large elements of prophecy.”
GORSUCH, J., concurring in judgment excerpt: Whether this law will succeed in achieving its ends, I do not know. A determined foreign adversary may just seek to replace one lost surveillance application with another. As time passes and threats evolve, less dramatic and more effective solutions may emerge. Even what might happen next to TikTok remains unclear. But the question we face today is not the law’s wisdom, only its constitutionality. Given just a handful of days after oral argument to issue an opinion, I cannot profess the kind of certainty I would like to have about the arguments and record before us. All I can say is that, at this time and under these constraints, the problem appears real and the response to it not unconstitutional. As persuaded as I am of the wisdom of Justice Brandeis in Whitney and Justice Holmes in Abrams, their cases are not ours. Speaking with and in favor of a foreign adversary is one thing. Allowing a foreign adversary to spy on Americans is another.