The Lawfare Podcast · The Lawfare Institute

Lawfare Archive: TikTok Ban at the Supreme Court

March 22, 2026·52 min·4 clips

Allen Rosenstein details how the TikTok ban law imposes steep penalties on app stores and cloud providers.

This Lawfare Archive episode, originally recorded on January 10, 2025, features Kevin Frazier, Allen Rosenstein, and Ramya Krishnan of the Knight Institute discussing the Supreme Court oral arguments over the Protecting Americans from Foreign Adversary Controlled Applications Act (PFACA), which required ByteDance to divest its stake in TikTok within 270 days or face a U.S. ban effective January 19, 2025. Rosenstein outlines the mechanics of the law: app stores like Apple and Google would be barred from distributing TikTok, cloud providers like Oracle could no longer host it, and domain name services might be forbidden from mapping TikTok.com, all carrying penalties of $5,000 per user. The law also includes a broader provision allowing the president to impose similar requirements on companies controlled by entities from China, Russia, North Korea, or Iran. The government advanced two justifications. First, a data privacy argument that ByteDance's Chinese ownership creates an espionage risk because the Chinese government could compel access to the massive user data TikTok collects. Second, a content manipulation argument that Beijing could covertly direct changes to TikTok's recommendation algorithm to advance Chinese interests. The D.C. Circuit had unanimously upheld the law in a 3-0 decision, with Judge Ginsburg assuming strict scrutiny but finding the national security rationale sufficient, and Chief Judge Srinivasan applying intermediate scrutiny. The court explicitly stated it did not rely on classified briefings provided by the intelligence community, though Justice Gorsuch expressed frustration about the lack of a formal process for parties to access classified evidence. TikTok's attorneys, Noel Francisco and Jeff Fischer, argued that TikTok USA has independent First Amendment rights as a U.S. subsidiary, and that its creators have rights to speak on their platform and choose their editor. They contended the law is content-based because it stems from concerns about how content is moderated, and that strict scrutiny should apply. On the data protection rationale, they pointed to the data broker law passed in the same legislative package as a less restrictive alternative. Krishnan analyzes the justices' questioning about whether the law merely regulates corporate structure rather than speech, noting Chief Justice Roberts and others pressed this point. She observes that TikTok had a strong response: the government's interest in foreign ownership stems entirely from concerns about content, making this fundamentally a speech case. Justice Barrett raised questions about whether an algorithm can be expressive, echoing her concerns from the Moody case. Rosenstein discusses the feasibility of divestiture, noting the justices showed little sympathy for TikTok's claims that separation from ByteDance was impractical, with several suggesting TikTok could simply develop its own algorithm. He evaluates the Solicitor General's defense of the law's tailoring, particularly the analogy that a general store disclosure that one of a thousand products causes cancer is unhelpful without identifying which product -- similarly, a general TikTok disclaimer about Chinese influence would not address covert manipulation of specific content. The panelists discuss an unusual colloquy about what would happen if the ban took effect but President-elect Trump declined to enforce it, including questions about reliance interests and due process for companies like Apple and Google. The predicted outcome: the court would likely assume heightened scrutiny applies but rule narrowly on the specific facts, deferring to Congress on national security grounds while avoiding broad First Amendment precedent that could affect other pending internet regulation cases.

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