U.S. Supreme Court Justice Neil Gorsuch wrote Friday that foreign adversaries could merely replace Chinese-owned TikTok with a similar app to surveil Americans, as the high court ruled to uphold a ban on the social media platform from app stores.
The forthcoming Trump administration will have to decide on whether to keep the ban intact. It goes into effect on Jan. 19.
In a concurring opinion, Gorsuch wrote that foreign adversaries could use another app to surveil the U.S. population and obtain sensitive data if TikTok is no longer used.
“Whether this law will succeed in achieving its ends, I do not know. A determined foreign adversary may just seek to replace one lost surveillance application with another,” Gorsuch wrote, concurring with the high court’s 9–0 vote to uphold the ban.
“As time passes and threats evolve, less dramatic and more effective solutions may emerge. Even what might happen next to TikTok remains unclear.”
Friday’s order upheld a law passed by Congress that requires TikTok to divest from its parent company ByteDance—which has headquarters in China and has its own Chinese Communist Party (CCP) secretary—or be banned from app stores.
In the opinion, Gorsuch said he agreed with the Supreme Court’s decision not to rely on governmental concerns about how TikTok—which primarily focuses on short video clips only seconds long—manages its content.
Lawyers for the government had, in part, argued that TikTok should be banned due to content that is being posted on the platform, not just the security and privacy risk it may pose.
“One man’s ‘covert content manipulation’ is another’s ‘editorial discretion,'” the justice wrote. “Journalists, publishers, and speakers of all kinds routinely make less-than-transparent judgments about what stories to tell and how to tell them.”
Over the years, there have been concerns, namely from parents and clinicians, that TikTok may also have an adverse impact on young people’s and children’s mental health, due to the nature of the app.
The app, some mental health advocates have said, promotes “endless scrolling,” and its “algorithm is cleverly designed to entice you to keep scrolling through and watching video after video,” according to a 2023 critique from UK nonprofit The Children’s Society.
The Supreme Court, in its unanimous decision, held that “there is no doubt that, for more than 170 million Americans, TikTok offers a distinctive and expansive outlet for expression, means of engagement, and source of community.”
However, the court said, lawmakers have found it must be divested to address “well-supported national security concerns regarding TikTok’s data collection practices and relationship with a foreign adversary.”
Separately, Justice Sonia Sotomayor, in a concurring opinion, wrote that she believes there is “no reason to assume without deciding that the Act implicates the First Amendment because our precedent leaves no doubt that it does.”
Despite that, the court explained in its opinion that the law’s provisions advance an important government interest unrelated to the suppression of free speech and do not restrict free speech more than is necessary.
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