TikTok Has Days Left Unless the Supreme Court Intervenes

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As of today, TikTok has 11 days left in the US. The site will be banned from app stores on January 19 unless something dramatic happens before then. What TikTok is hoping will happen is a last minute intervention by the Supreme Court.

TikTok, the popular social media platform celebrated for its frothy mix of dance videos, cat antics, news clips and recipes, will wage a substantial First Amendment battle at the Supreme Court on Friday…

TikTok is appealing a formidable lower court ruling that highlighted security threats, specifically the US government’s concern that Beijing will amass data on American users and covertly manipulate TikTok’s content for espionage and other damaging purposes…

The company and the content creators challenging the impending ban have strategically ramped up their arguments on the dangers of suppressing speech, even if propaganda from a foreign adversary. TikTok has also switched up its legal team for Friday’s arguments. It will be represented at the courtroom lectern by Noel Francisco, a former US solicitor general from Donald Trump’s first term.

The problem TikTok is facing now, besides running out of time, is that the lower court decision they are appealing was unanimous and was written by a Reagan appointee who focused on the potential for Chinese abuse of the platform.

In the opinion by Judge Douglas Ginsburg, a 1986 appointee of Ronald Reagan, the DC Circuit found the government had “compelling” interests in countering China’s efforts to collect data about American users and in countering the risk of covert manipulation of TikTok content. Ginsburg was joined by Judge Neomi Rao, a Trump appointee and former law clerk to Justice Clarence Thomas.

The third judge, an Obama appointee named Sri Srinivasan, also agreed. He wrote, “It is a modus operandi of the PRC to surreptitiously access data through its control over companies like ByteDance. … Even if the PRC has yet to discernibly act on its potential control over ByteDance’s access to data on American users in particular, Congress did not need to wait for the risk to become realized and the damage to be done before taking action to avert it.”

In other words, we know China wants to steal US data and we know it has access to anything ByteDance gathers. Just because we can’t prove they’ve abused this power so far doesn’t mean they haven’t already or won’t in the future.

We are still trying to get Chinese hackers connected to the government out of our telecom systems. The idea that China wouldn’t abuse it’s position of control over ByteDance is laughable. Hopefully the Supreme Court will uphold the ban.

Meanwhile, there are some signs that TikTok knows the end is near. The company’s general manager of agency business left earlier this month not long after their head of sales for North America departed. It’s probably hard to sell ads when your entire platform is about to vanish.

TikTok is also making an effort to usher users onto another ByteDance-owned social media site called Lemon8:

In the last few weeks, Lemon8 has been promoting its app to TikTok users through sponsored TikTok videos.

In one sponsored post, TikTok user @miller.dailylife shares a video with a creator saying, “TikTok actually has another backup app. It’s called Lemon8 … and it automatically signs you in with your TikTok so you can still keep the same TikTok name and things like that. And it’s supposed to transfer your followers over. … Once you add Lemon8, it automatically pops up on your TikTok bio, so that people can just click on it.”

“So, just so you guys know, now that they’re trying to do this ban, if you want to have somewhere else to go where the government is not 100% controlling what we see, what we consume … Just go ahead and go on to Lemon8.”

It’s not clear that this will work because the same law that is about to ban TikTok should, in theory, also apply to Lemon8 for the same reasons.

The law, which would wipe out TikTok’s U.S. operation if it’s not sold to an approved buyer, states the divest-or-ban requirement applies generally to apps that are owned or operated by ByteDance, TikTok or any of their subsidiaries. That means even though Lemon8 and CapCut are not explicitly named in the statute, their futures in the U.S. also are in jeopardy.

Jasmine Enberg, an analyst at market research company Emarketer, noted that the creators recommending Lemon8 may not be aware of the possible implications for the other ByteDance apps because the law does not identify them.

If TikTok disappears will most users just migrate to Lemon8 and if so how long will it be before that site is also banned. My guess is that ByteDance is hoping the incoming Trump administration won’t push the issue and so, even though Lemon8 should also fall under the same law, it might be allowed to slide because the new Trump administration has no interest in enforcing it. We’ll all have to wait just a few more days to see how this plays out.