Is TikTok’s time nearly up?

The clock appears to be winding down on TikTok’s future in the U.S. Beijing-based ByteDance, the firm behind the popular video-sharing website in the U.S., has until Sunday to sell TikTok to a non-Chinese owner or close.

In a law passed last year, Congress cited national security concerns in barring internet service providers and firms from hosting or offering apps controlled by foreign governments hostile to the U.S. Lawmakers say China could manipulate personalized video feeds to influence U.S. public opinion, and they note the website also gathers massive amounts of user data in the process.

ByteDance claims the law infringes on its First Amendment rights as well as those of users.

On Friday, the U.S. Supreme Court heard oral arguments in the case, TikTok v. Garland, and is expected to rule soon.

The Gazette spoke with Timothy Edgar, J.D. ’97, a privacy and cybersecurity law expert who teaches at Harvard Law School and Brown University. Edgar’s position is that the law limits the First Amendment rights of ByteDance and TikTok users in the U.S. This interview has been edited for clarity and length.

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What question is the Supreme Court considering?

The court is being asked to consider whether the Protecting Americans from Foreign Adversary Controlled Applications Act is constitutional, whether it infringes on either the First Amendment rights of TikTok in TikTok v. Garland or the American video creators who use the platform in Firebaugh v. Garland.

The first question they’re going to have to decide is if TikTok has any First Amendment rights here. And then, if it does, does the government have a compelling interest that is narrowly tailored to its concerns, which is the test under the First Amendment for restrictions on speech.

My own view is that they do have First Amendment rights. Perhaps much more importantly, the 170 million Americans who are users of the platform and over 1 million creators obviously have First Amendment rights, so even if TikTok itself loses on that issue, the Supreme Court will still have to decide the First Amendment issue.

The second step is: Does the government’s argument satisfy the standard of strict scrutiny, which is the very demanding standard that the Supreme Court has set out for restrictions on free speech. In my opinion, it doesn’t.

Proponents of the law say it doesn’t ban TikTok or put national security above free speech. Can you talk more about the government’s position?

They’re disputing that it’s a ban by saying, “No, this is just an ownership regulation.” And in the area of broadcast regulations around TV stations, radio stations, and so forth, there’s precedent for restrictions or limits on foreign ownership of those media platforms.

The argument against that is that those cases have to do with a different era in media, dealing with the government having to make choices about which companies get the rare privilege of having a broadcast license, which is inherently limited because of spectrum scarcity.

The internet is not like that. There is no limit on how many websites or platforms can exist. It’s up to the public to decide whether to go to a website or not. And so the case is much closer to magazines or books, where the standard is very protective: The American people have the right to read whatever magazines or books they want. If the U.S. government thinks they’re foreign propaganda, as they did during the Cold War, that didn’t affect the rights of the companies to publish or the public to read them.

Foreign ownership restrictions might work in the context of broadcast licenses, but they shouldn’t work in the context of the internet for the same reason that they shouldn’t work in the context of publishing.

The second claim is: “It’s just an ownership restriction; it’s not a restriction on speech.” In the real world it is a restriction on speech because divestiture is not legally or practically or financially possible for TikTok because the Chinese government restricts the ability of foreign companies to acquire sensitive technology.

Chinese leaders believe the TikTok recommendation engine is valuable intellectual property that they will not permit to be exported. That means TikTok cannot find another owner and so, its only choice is to shut down.

What were some of the stronger arguments the U.S. government made?

The U.S. government does have some important arguments on its side. Maybe you can distinguish those broadcast-era cases, but they’re still there. Ultimately, the law is an ownership restriction rather than a ban, and there’s some history of ownership regulations being upheld by the Supreme Court.

I think they have strong national security arguments about the risk of U.S. user data being obtained by Chinese intelligence and about the risk of the Chinese government pressuring this social media platform to change its algorithm in order to serve Chinese government propaganda goals.

Those are both strong arguments. It’s reasonable for the Supreme Court to defer to the executive and the legislative branch on whether that’s a real risk.

The main reason I side with TikTok in this case is that even if the risks are real, there are better alternatives than shutting down a whole platform. I think it’s a terrible message for the U.S. to be sending to the rest of the world, to erect a great firewall when it comes to one of the world’s leading social media platforms. And it’s a very bad message for internet freedom and for our role in standing for internet freedom.

During oral arguments, the justices did not sound very receptive to TikTok’s argument. How likely is TikTok to prevail?

If I’m a betting man, I’m going to bet on the government winning this case. But that said, it’s always a mistake to listen to the arguments and the questions and assume that’s how it’s coming out. All the questions I heard were perfectly legitimate questions I might have asked counsel if I were trying to probe the weaknesses in a position I was considering adopting. The Supreme Court could end up surprising us and at least enjoining this law to have it go through a more regular process of judicial review.