The greatest social and political capital of our time is human attention, and the challenge for politicians today is how to capture it using social media. It was, therefore, no surprise that the Supreme Court of the United States (SCOTUS) heard TikTok Inc et al v Merrick B Garland, Attorney General on an expedited basis and even declared a verdict on January 17. The case demonstrates how the discipline of law confronts major technological advances —a highly popular app resulting in judges diving into the world of social media regulation.
First things first, TikTok was launched in 2017, has 170 million users in the US and one billion worldwide. It’s a rather extraordinary number given that the population of the US is around 344 million. You can imagine how desirable the app is for all groups that vie for human attention in a high-value market like the US.
As SCOTUS neatly explains, “In 2023, US TikTok users uploaded more than 5.5 billion videos, which in turn were viewed more than 13 trillion times around the world.” It further noted, “TikTok is operated in the United States by TikTok Inc, an American Company incorporated and headquartered in California. TikTok Inc’s ultimate parent company is ByteDance Ltd, a privately held company that has operations in China.”
This prompted the security concerns of the US government given that data pertaining to 170 million Americans is in the hands of a Chinese company. SCOTUS summarised the problem as follows: “ByteDance Ltd owns TikTok’s proprietary algorithms which are developed and maintained in China. The company is also responsible for developing portions of the source code that runs the TikTok platform. ByteDance 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 private data’ the company holds.”
The TikTok saga spanned both Donald Trump’s first (2017-2021) administration and Joe Biden’s administration (2021-2025). President Trump issued an executive order in August 2020 finding that the “spread in the United States of mobile applications developed and owned by companies in China continues to threaten national security, foreign policy and economy of the United States.”
Subsequently, the US Congress enacted the Protecting Americans from Foreign Adversary Controlled Applications Act, 2024 (“the Act”) that made it unlawful for any entity to provide services to distribute, maintain or update a “foreign adversary controlled application” in the country. Meanwhile, if the app undergoes a “qualified divestiture”, one where the president determines that it is no longer controlled by a foreign adversary, then it will be allowed to function. TikTok was allowed to function with its existing ownership structure till January 17, 2025 — the date of the judgment.
In a judgment upholding the Act, the court ruled that the divestiture requirement “for purposes of preventing a foreign adversary from accessing the sensitive data of 170 million US TikTok users is not a subtle means of exercising a content preference,” adding that “speakers distinctions such as this are not presumed to be invalid under the First Amendment”. Free speech is protected by the First Amendment to the United States Constitution.
“The government’s TikTok related data collection concerns do not exist in isolation,” explained the court. “The record reflects that China has engaged in extensive and years-long efforts to accumulate structured data sets, in particular on US persons to support its intelligence and counterintelligence efforts. Even if China has not leveraged its relationship with ByteDance Ltd to access US TikTok user data, the petitioners offer no basis for concluding that the government’s determination that China might do so is not at least a reasonable inference based on substantial evidence.”
While deferring to Congress and the government, the court asserted, “We are mindful that this law arises in a context in which national security and foreign policy concerns arise in connection with efforts to confront evolving threats in an area where information can be difficult to obtain and the impact of certain conduct difficult to assess.” Finally, SCOTUS concluded that the regulations promoted a “substantial governmental interest” and that the regulation “did not burden substantially more speech than is necessary” and hence, the law did not violate First Amendment rights. Meanwhile, Justice Sonia Sotomayor in her concurring opinion concluded that the Act in question did implicate freedom of speech by “imposing a burden on TikTok’s speech in the United States”. Given the majority decision, however, TikTok went off the air for 12 long hours and its 170 million American users had no access to it.
But the story doesn’t end here. On January 20, President Trump signed an executive order halting the TikTok ban for 75 days to permit his administration “an opportunity to determine the appropriate course of action”. The president has the power to delay the ban for up to 90 days. Meanwhile, urged on by Trump, an American investor group is putting together a bid to buy the social media app from ByteDance. At an election victory rally, Trump had told his supporters, “We have no choice but to save it (TikTok),” while suggesting that the US will own 50 per cent of the company.
The case of TikTok demonstrates how social media is the new oil. A resource so valuable for the human beings whose attention it captures that constitutional courts vie to regulate it and presidents strive to emancipate it. This case must also be read for how deftly the court navigated concerns of free speech and national security, alongside the nuances of social media. The case poses questions that will undoubtedly arise in other countries as well: When an alleged foreign adversary owns a substantial swath of a country’s citizens’ data, how must a government secure it?
Guruswamy is Senior Advocate at the Supreme Court
