Supreme Court upholds TikTok divestiture law

The Supreme Court unanimously upheld the statute that could lead TikTok to go dark in the United States tomorrow. In a per curiam opinion, the Court reasoned that the law was subject to intermediate scrutiny because it was facially a content-neutral restriction. The national security threats were a sufficiently compelling interests, and the many attempts the Trump and Biden administration made to make a deal that would allow TikTok to operate without making huge amounts of private data available to the Chinese government helped satisfy the narrow tailoring requirement.

A critical point, which I don’t think is sufficiently understood, is how much data TikTok obtains from nonconsenting third parties:

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.

As Gorsuch, after throwing out a little Twitter files-style bullshit for the rubes, puts it in his concurring opinion:

Fourth, whatever the appropriate tier of scrutiny, I am persuaded that the law before us seeks to serve a compelling interest: preventing a foreign country, designated by Congress and the President as an adversary of our Nation, from harvesting vast troves of personal information about tens of millions of Americans. 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…

….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.

Whether this law is the best means of responding to this serious problem I don’t know, but it’s nice to see the Supreme Court not try to answer this question which is not its to answer for once.