The unanimous U.S. Supreme Court opinion upholding the forced sale of TikTok is a necessary first step toward reining in the wholesale exploitation of Americans’ data. But it is only a first step. Gaping vulnerabilities remain. Let’s first consider this ruling, its reasoning and implications: The Supreme Court’s Thinking: TikTok is owned by ByteDance, a Chinese company that is obligated to share all of its data with the regime in Beijing. Consider that any data collected by TikTok is ready-made material for blackmail, corporate espionage, and weaponization by the Chinese state. What’s at risk, specifically? Just ask the Court, which affirmed that TikTok’s “data collection practices extend to age, phone number, precise location, internet address, device used, phone contacts, social network connections, the content of private messages sent through the application, and videos watched.” But the issue is even bigger. In his concurrence, Justice Neil Gorsuch wrote: “The record before us establishes that TikTok mines data both from TikTok users and about millions of others who do not consent to share their information … TikTok can access ‘any data’ stored in a consenting user’s ‘contact list’ – including names, photos, and other personal information about unconsenting third parties.” It is for these reasons that the Court unanimously found that “the Act is sufficiently tailored to address the Government’s interest in preventing a foreign adversary from collecting vast swaths of sensitive data about the 170 million of U.S. persons who use TikTok.” The Court’s Respect for the First Amendment Justice Gorsuch’s concurrence showed great deference to the First Amendment. “Too often in recent years,” he wrote, “the government has sought to censor disfavored speech online, as if the internet were somehow exempt from the full sweep of the First Amendment.” Justice Gorsuch noted that in this case the Court “rightly refrains from endorsing the government’s asserted interest in preventing ‘the covert manipulation of content’ as a ‘justification for the law before us … One man’s ‘covert content manipulation’ is another’s ‘editorial discretion.’ Journalists, publishers, and speakers of all kinds routinely make less-than-transparent judgments about what stories to tell and how to tell them.” As we’ve written before, it would be a violation of the First Amendment to close a newspaper that ran Chinese disinformation and propaganda. In that instance, policymakers would have to rely both on other media to expose that newspaper and on the good sense of the American people. But if a newspaper came with newsprint that seeped into the fingertips of readers to release a carcinogen, closure would be lawful, necessary, and proper. The Protecting Americans from Foreign Adversary Controlled Applications Act is a law in that vein – and the Court was right to uphold it. Justice Gorsuch also praises the Court for declining to consider the government’s classified evidence, which was withheld from TikTok and its lawyers. He wrote: “Efforts to inject secret evidence into judicial proceedings present obvious constitutional concerns.” Americans Still Data-Naked Before the World The People’s Republic of China is a unique threat to Americans’ privacy. And it is far from contained. Outgoing FBI Director Christopher Wray has warned that Chinese-controlled shell companies can also gain access to our data. But China is far from the only threat. As a foreign entity, one thing China cannot do is smash your door open with a battering ram at 4 a.m., pull you out of bed and prosecute you on the basis of evidence that you will never see and that will never be presented in court. But U.S. domestic law enforcement can do that. The FBI does this by purchasing your personal information from third-party data brokers and examining it without a warrant. This is the very same “backdoor loophole” acknowledged by Pam Bondi in her confirmation hearing as attorney general. Other agencies, ranging from the IRS to the DEA to the Department of Homeland Security are also purchasing and using our data – information that is often more personal than a diary. Today’s Court ruling suggests there are next steps to protecting Americans’ privacy. One would be to take Justice Gorsuch’s constitutional concerns about injecting secret evidence into judicial proceedings and applying them to the State Secrets privilege. That insidious, time-weary doctrine has long prevented defendants from knowing the evidence against them when gleaned by government surveillance. The Bottom Line The upholding of the TikTok law mandating a sale was a good first step toward securing digital privacy for Americans. But much more needs to be done to protect Americans. Another needed action would be final passage of the Fourth Amendment Is Not for Sale Act, which would require U.S. federal agencies to obtain a warrant before inspecting our purchased data. The House passed this legislation in 2024. It should pass this Congress and go to the president’s desk for signature this year. Today’s ruling is a fine start. But we’ve got a long way to go to restore privacy and the Fourth Amendment to American life. Comments are closed.
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