Many of TikTok’s ardent users are devastated, civil liberties and First Amendment groups slammed the ruling, and politicians backpedaled on their own decision to ban the hugely popular app. No one should be surprised by the Supreme Court’s unanimous decision to allow the federal law requiring TikTok to be sold or cease operations in the United States, however.

The Protecting Americans from Foreign Adversary Controlled Applications Act better known as the TikTok Ban), applies to companies controlled by foreign adversaries (China, North Korea, Russia, or Iran), that make applications with more than a million monthly users. It requires such companies to be sold so they are no longer controlled by a foreign adversary. Failure to sell the company would result in it being banned from U.S. app stores and prohibits the owner of the app from distributing, updating, or maintaining the app, with harsh penalties for non-compliance.

The Court noted that the law did not directly address any person or entity’s speech, but that the required divestiture could burden First Amendment conduct. It, therefore, assumed without finding that the law was subject to a First Amendment challenge. While the Supreme Court’s January 17 ruling (two days before the law would require TikTok’s forced sale) takes great pains to describe TikTok’s unique role as a platform for more than 170 million Americans, the Court was clearly unmoved by the argument from users that forcing a change of ownership of the platform would unlawfully infringe on users’ First Amendment rights. In other words, the Court was not convinced that the medium is the message. No matter how effective TikTok’s “For You” algorithm is at connecting its users to content they want to see, and at letting creators reach a broad audience that wants to engage with their content, the Court determined that the law’s regulation of the app’s ownership was a content-neutral regulation, subject to intermediate scrutiny, not strict scrutiny.

The application of the lower intermediate scrutiny standard meant the law would survive so long as the government could show it “advances important governmental interest unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.” See Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 189 (1997).  

At oral argument, the government’s attorney, Solicitor General Prelogar, made compelling arguments that the ability of the Chinese government to collect vast amounts of personal data from TikTok’s 170 million users posed a significant national security threat to the United States. As TikTok’s parent company, ByteDance, is subject to Chinese law requiring it to cooperate with the Chinese government’s intelligence operations, the Chinese government has essentially unfettered access to whatever information TikTok collects on its users. All of that data, Prelogar argued, could be used to blackmail users. Even if individual users who mainly consume and post dance videos or video game-related content are not concerned that their data is being shared with the Chinese government, it poses espionage risks to the United States (some of TikTok’s teenage users today will one day join the military or become public officials).  Supported by a credible claim of national security risks, a content-neutral regulation on foreign ownership of a platform was always likely to survive a challenge.

It is fair to ask if the U.S. government’s singling out of TikTok, demonstrates a particular animus toward China and Chinese companies rather than concern about how Americans’ data is collected, analyzed, packaged, and sold off to the highest bidders, including our potential enemies. The same sort of data, after all, is collected on other platforms, including Facebook and X, and was used to attempt to manipulate American public opinion in the Cambridge Analytica scandal. But there should be no doubt that China is aggressively collecting intelligence to use against the United States (all countries attempt to collect intelligence on their adversaries).

Regardless of whether the U.S. government enforces the TikTok ban or walks it back (President Trump issued an executive order to delay enforcement of the ban), China will continue to seek to collect data on Americans. It might use that data to try to change public opinion and Americans’ image of China, it may also use that information to cultivate intelligence assets or blackmail individuals with access to sensitive information. If a TikTok ban prevents China from using the app’s massive stores of data to do so, it could simply turn to buying similar data from other sources.

Unless and until the United States government takes data privacy seriously and passes comprehensive data privacy laws, Americans will have little knowledge of or control over what information is gathered about them, how it is used, or to whom it is sold. The lack of data privacy protection poses risks to our national security, our personal privacy, and the information environment that surrounds us.