WASHINGTON (CN) — President-elect Donald Trump on Friday urged the Supreme Court to delay a TikTok ban so he can negotiate a deal that would avoid a nationwide shutdown of the app.
Despite igniting concerns over its Chinese ownership and signing an executive order banning the app over concerns about national security and data privacy in 2020, Trump now says his position has changed.
“President Trump opposes banning TikTok in the United States at this juncture, and seeks the ability to resolve the issues at hand through political means once he takes office,” his attorney wrote.
Noting that he has 14.7 million TikTok followers, Trump suggested that his ability to connect with users aided in his presidential win. He also cited a Truth Social post from September, in which he called on Americans who wanted to save TikTok to vote for him.
The incoming president submitted his views in an amicus brief before the Supreme Court, which rushed to schedule arguments before a bipartisan divest-or-ban law takes effect on Jan. 19.
Trump, who will be inaugurated for his second term on Jan. 20, hopes to give the high court an off-ramp.
“In light of the novelty and difficulty of this case, the Court should consider staying the statutory deadline to grant more breathing space to address these issues,” Trump wrote.
In a rare bipartisan move this year, lawmakers ordered TikTok’s China-based owner, ByteDance, to divest or face a ban in the U.S. Citing national security concerns, the Protecting Americans from Foreign Adversary Controlled Applications Act prohibits foreign adversaries from controlling social media apps.
TikTok sought reprieve from the courts, filing a constitutional challenge to the ban. The social giant argued that silencing the speech of 170 million American users was an unprecedented war on the First Amendment.
The company argues its California-based subsidiary operates the platform in the U.S. — blocking the Chinese government from potentially accessing any user data. And even assuming China could access user data — which TikTok says it can’t — the company argues it can’t be stripped of its First Amendment rights.
“Congress’s unprecedented attempt to single out Petitioners and bar them from operating one of the Nation’s most significant speech venues is profoundly unconstitutional,” TikTok wrote.
The D.C. Circuit agreed the law restricted speech but said it was constitutional because it served a compelling government interest. But First Amendment advocates said it’s unconstitutional to bar Americans from accessing foreign speech.
The Knight First Amendment Institute says such prohibitions are popular in totalitarian governments seeking to control information available to their citizens. It cited Iranian restrictions on social media platforms, Saudi Arabia’s prohibitions on certain news sites and Israeli Prime Minister Benjamin Netanyahu’s government shutting down of the Israeli newspaper Haaretz.
“The list of countries that have banned TikTok should itself be a warning because these countries do not share American commitments to a free and open internet,” the institute wrote. Among those countries: Afghanistan, Iran, North Korea, and Somalia and even China.
“Ironically, China bans TikTok, allowing only a Chinese version called Douyin that is subject to heavy censorship,” the institute noted.
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The Biden administration says prohibitions on foreign adversary ownership do not implicate the First Amendment.
“ByteDance is a foreign entity operating abroad and thus lacks First Amendment rights,” U.S. Solicitor General Elizabeth Preloar wrote. “Nor can it manufacture a First Amendment right by laundering its overseas activities through its American subsidiary.”
Even under the First Amendment, the Biden administration believes the law is constitutional because it “surgically addresses” lawmakers’ national security concerns.
That’s a view shared by many lawmakers. For example, Congressman Raja Krishnamoorthi, an Illinois Democrat, says lawmakers relied on decades of internal reports, as well as public and classified briefings, to assess the risks of TikTok.
Under China’s 2017 National Intelligence Law, all organizations and citizens must cooperate with national intelligence efforts.
According to lawmakers, this allows the Chinese government to force companies like ByteDance and their subsidiaries around to provide any data deemed necessary to support that mission. In 2021, China enacted a data-security law giving government authorities jurisdiction over data outside the Chinese mainland to preserve national security or investigate crimes.
Lawmakers also cite reports of the Chinese Communist Party using TikTok to spy on pro-democracy protesters in Hong Kong and surveil U.S. journalists.
In court filings, the Campaign for Uyghurs, the Committee for Freedom in Hong Kong, Hong Kong Watch, International Campaign for Tibet and others detailed how the Chinese Communist Party uses a high-tech network of surveillance to oppress Uyghurs, commit human-rights violations in Tibet and assault Hong Kong’s autonomy.
“From the mass genocide of ethnic and religious groups to programs of punitive state-imposed forced labor, to the torture and imprisonment of intellectuals and dissidents, the CCP’s human rights violations are extensive,” the groups wrote. “These abuses are often perpetrated with the assistance and complicity of technology companies, further amplifying their scale and impact.”
Strange bedfellows have emerged on both sides of the case. A conservative advocacy group started by former Vice President Mike Pence sided with the Biden administration, calling TikTok “digital fentanyl.”
“The First Amendment is not, and should not be read as, a means of granting the Chinese government the power to do what the American government could not: manipulate what Americans can say and hear,” that group, Advancing American Freedom, wrote.
While current government officials have been tight-lipped over details proving the threat of TikTok’s foreign ownership, former national security officers describe how the party could deploy TikTok as a widescale propaganda and misinformation machine to influence U.S. policy debates.
For example, “in the lead up to the enactment of the statute at issue in this matter, TikTok sent its 170 million American users a prompt mischaracterizing the Act’s divestment requirement as a flat ban on TikTok and encouraging them to call their representatives in Congress to oppose the Act,” national security officials wrote.
The Supreme Court is scheduled to hear arguments on Jan. 10.