TikTok may be ‘overestimating’ SCOTUS support: Expert

TikTok and its China-based owner ByteDance are requesting a divest-or-ban law be put on hold until the U.S. Supreme Court has weighed in. The move comes days after a US appeals court upheld the law, saying that the potential ban withstood constitutional scrutiny by protecting free speech in the US “from a foreign adversary nation and to limit that adversary’s ability to gather data on people in the United States.” Freshfields CFIUS and National Security Advisor Colin Costello joins Seana Smith and Madison Mills to discuss the legal path ahead for TikTok. Costello notes that the appeal court’s ruling was very definitive, making the chances of overturning it slim. “The circuit court here was pretty definitive in terms of its ruling,” he says, explaining that the law passed strict scrutiny, the highest level of review in First Amendment cases. After the appeal decision, TikTok said in a statement, “The Supreme Court has an established historical record of protecting Americans’ right to free speech, and we expect they will do just that.” But Costello says that although the Supreme Court’s record is favorable to free speech arguments, “TikTok may be overestimating the extent to which that unanimity might play out in a case like this, where the issue is national security.” When asked what this law means for broader legislation addressing the availability of data, Costello says “in the absence of a broader framework, sort of like a US GDPR [General Data Protection Regulation], you’re going to ultimately always be in a reactive mode.” But that’s not necessarily a bad thing, Costello points out. Advocates of this so-called wack-a-mole approach would argue it more narrowly allows officials to address risks when they crop up, rather than place a “significant” regulatory burden on everyone. Ultimately, Costello says he doesn’t see much of a generalized appetite for a broader framework in the US. As for TikTok, its future rests in the hands of either the Supreme Court or President-elect Trump.
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