Things move fast online and usually slowly through the courts, but this is shifting for TikTok. The US Supreme Court will hear arguments on January 10 on legislation that would ban the social media platform from operating in the US unless it is sold to a US firm. Since TikTok’s owner will not sell, only the court can save the company from shutting down. In the US, on January 19.

It should be a clear-cut case. It is common to ban a company from operating in the US on national security grounds and the TikTok ban received bipartisan support in Congress, underlining a broad consensus in Washington. But politics may intervene. President-elect Trump has petitioned the court to pause and it is questionable whether TikTok does much different than other US social media platforms. And Europe, despite serious worries about TikTok’s impact on elections, does not look ready to follow.

The Chinese-owned short-form video platform has become a social phenomenon. It has 150m monthly active users in the US. Pew Research data shows that 63% of teens 13-17 and 59% of young adults ages 18-24 use TikTok.

The US government argues that TikTok poses “grave national security threats.” The Chinese government owns part of its owner ByteDance. TikTok disagrees, saying that a ban represents government overreach suppressing free speech.

Lower US courts upheld the TikTok ban. In a range of industries, the US already prohibits certain companies, many of them Chinese. The E-commerce giant Alibaba’s payment application Alipay is blocked because of potential risks to user data. CGN Power Corporation is prohibited, partly due to the allegation that it stole American nuclear technologies.

While Trump attempted to ban TikTok during his last stay in the White House, he has now done a 180-degree turn, asking the Supreme Court to stay the ban and allow his political savvy to solve the problem. The incoming president’s motivations are unclear – he may believe a ban violates the First Amendment, he may have appreciated how influencers used the platform to boost his campaign, and he may be influenced by former advisors who are TikTok advisors and others who may want to do a buyout.

Whatever the reason, legal experts are skeptical. No precedence exists for staying a law based on the President-elect’s “consummate dealmaking expertise” (to quote his brief to the Court).  TikTok’s ban is grounded in the government’s power to regulate commerce when dealing with foreign companies. In similar cases, the Court has usually sided with the government. The government’s argument is that TikTok poses a severe national security risk, both in terms of the way TikTok restricts or amplifies certain political messaging and in the vulnerability of user data.

Similar concerns about political messaging have raised issues for TikTok internationally. In December, authorities voided the first round of the Romanian presidential election over concerns that TikTok violated election rules by allowing malignant Russian interference. Brussels is now investigating under the European Union’s new Digital Services Act, one of the major EU tools for regulating social media companies. TikTok faces potential huge fines, but a ban in Europe remains unlikely.

Although the Biden administration cites national security concerns, these are not public. Crucial documents in the government filings are redacted. TikTok’s legal team argues this is unconstitutional, because it cannot evaluate and respond to the claims. Hiding the justification under the blanket of national security information may be reasonable, but it could be subject to abuse.

If critics are right, TikTok has exposed and misused the data of its users. These issues apply to all major social media platforms. TikTok’s two largest global competitors are US firms, Meta and X. If TikTok is shut out of the US market, both firms would benefit. Major media centers, both independent and the government, have analyzed bot-networks on Facebook and Instagram (Meta products) and X showing foreign influence operations, just as they do on TikTok.

But the Supreme Court will not consider whether the TikTok ban illegally benefits US competitors. The government’s invocation of national security rules out such an argument. In the end, national security almost certainly represents the winning card.

Joshua Stein recently completed a postdoctoral fellowship at the Georgetown Institute for the Study of Markets and Ethics. His work focuses on ethics, technology, and economics.

Bandwidth is CEPA’s online journal dedicated to advancing transatlantic cooperation on tech policy. All opinions are those of the author and do not necessarily represent the position or views of the institutions they represent or the Center for European Policy Analysis.

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