In a surprising turnaround, Donald Trump, who attempted to ban TikTok with an executive order during his first term, asked the Supreme Court to suspend a law that could result in the app being banned in the United States until upon his return to power.
Source: © The Economic Times President-elect Donald Trump backtracks on TikTok ban in the United States
The president-elect says this will give him time to negotiate a deal allowing the app to remain active in the United States.
In his friend-of-the-court statement, he says he opposes the TikTok ban at this time and “seeks to resolve the issues through political means as soon as he takes office ”.
Passed earlier this year, the Protecting Americans From Foreign Adversary Controlled Applications Act will take effect on January 19.
This will be the day before Trump returns to power.
Although Trump is not directly involved in the case, his position could carry significant weight with the judges.
The legislation prohibits app stores and websites from distributing TikTok unless the app is sold by its Chinese owner, ByteDance, to a U.S. company by Jan. 19, or face a ban.
This reversal by Trump demonstrates how significant ByteDance's efforts to build relationships with Trump and his team during the presidential campaign were.
According to The GuardianTrump met with TikTok CEO Shou Zi Chew in December.
This was hours after he expressed “sympathy” for the app, indicating that he favored allowing TikTok to continue operating in the United States, at least for a time.
Trump also mentioned that he received billions of views on the platform during his election campaign.
The First Amendment Question
While Trump acknowledges concerns his administration had also raised about the platform in 2020 in his statement, he claims the “poor timing” of the law's implementation is “disrupting” his ability to “manage foreign policy of the United States and pursue a solution that protects national security while preserving a social media platform that is a popular vehicle for 170 million Americans to exercise their fundamental First Amendment rights.”
CNN quotes Trump as saying that delaying implementation of the law could “eliminate the need for this court to decide the historically complex issue of the First Amendment.”
Defenders of freedom of expression
The Supreme Court is expected to consider arguments on the constitutionality of the law on January 10.
Congress passed the measure due to concerns from lawmakers that the data of TikTok's 170 million users in the United States could be accessed by the Chinese government and used to influence public opinion in U.S. elections.
Free speech advocates say the US law against TikTok is reminiscent of censorship regimes instituted by America's authoritarian enemies.
TikTok and a group of content creators said the law violates the First Amendment and asked the Supreme Court to overturn it.
In its statement to the court, TikTok says this constitutes an attempt by the federal government to shut down “one of the most meaningful platforms for expression in America.”
She adds that lawmakers were required under the First Amendment to explore other options, such as disclosures regarding company ownership.
“History and precedent show that, even when national security is at stake, speech bans must be Congress’s last resort.”
Groups advocating for First Amendment protections include the American Civil Liberties Union and the Knight First Amendment Institute at Columbia University.
The legislators
The Justice Department, backed by the majority of U.S. lawmakers, says Chinese control of TikTok poses a continuing threat to national security.
President Joe Biden's administration and a bipartisan group of former officials, including Trump staffers, urged the Supreme Court to uphold the ban on TikTok.
That group includes Jeff Sessions, Trump's first attorney general, and Ajit Pai, the Trump-appointed chairman of the Federal Communications Commission from 2017 to 2021, as well as former Vice President Mike Pence.
Launched by Trump's vice president during his first term in 2021, the political advocacy group Advancing American Freedom also submitted a statement describing TikTok as a “digital fentanyl” and a “technological weapon.”
This group told the Supreme Court: “The First Amendment is not, and should not be construed as, a means to give the Chinese government the power to do what the United States government cannot do: manipulate what Americans can say and hear.”
A troubling global precedent
In his brief friend-of-the-court statement, Trump says the national security concerns underlying the law “appear significant and pressing,” but argues that allowing the law to take effect “risks to set a worrying global precedent”.
He comments on the subject, saying it is a “novel, complex and significant tension between national security concerns and the free speech interests of more than 170 million ordinary Americans.” .
The statement emphasizes that the court should be deeply concerned about setting a precedent that could “create a danger of a slide toward global government censorship of speech on social media.”
“The power of a Western government to ban an entire social media platform with more than 100 million users, at a minimum, should be considered and exercised with the utmost caution — not studied on a 'highly accelerated basis' .”
D. John Sauer, Trump's lawyer and also chosen by the president-elect to be U.S. solicitor general, told Reuters that Trump is not taking a position on the underlying issues in this dispute.
“Instead, it respectfully asks the Court to consider extending the divestment law deadline of January 19, 2025, while considering the merits of this case, thereby allowing the incoming Trump administration to pursue a political resolution of the issues at stake in this matter.”
Interdiction de TikTok en Inde
In June 2020, TikTok was banned in India after a military clash along the India-China border, where 20 Indian and four Chinese soldiers were killed. (TikTok is not an isolated case, so far India has banned over 500 Chinese apps.)
In banning the app, the Indian government cited privacy concerns, indicating that Chinese apps pose a threat to India's sovereignty and security.
At the time, India had around 200 million TikTok users. Most of them turned to other apps, stating that it was not a big problem.
However, the Indian situation is not comparable to that currently prevailing in the United States. In India, TikTok has not ended up in court. The US is also a bigger revenue market for the app than India.
Additionally, the First Amendment in America is relatively strong, and therefore banning the app will not be as simple as in India.
Besides India, other countries like Afghanistan, Pakistan and Nepal have banned TikTok.
The European Parliament, European Commission and Council of the EU have banned TikTok on staff devices, while Australia has banned TikTok on federally issued devices.
Additionally, TikTok is also banned on government phones in Belgium, France, New Zealand, the United Kingdom and Canada.
In a context where the regulation of digital platforms is becoming a major issue, it would be interesting to question the balance to be found between national security and freedom of expression. Decisions made on this topic in the coming months could not only impact TikTok, but also set a global precedent for how governments interact with apps from other countries. What will be the repercussions of such legislation on users and their perception of their rights as citizens in the digital sphere?
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