The TikTok Test: Can American Civil Liberties Survive the Digital Age?

The recent Supreme Court ruling on TikTok’s viability within the United States reflects the evolving question of what defines American national security and its historical entanglement with the Constitution. [1] In the late 18th century, the Framers were concerned with the balance of national security. They cautioned that the innate American love for liberties should not “give way to its dictates,” as Alexander Hamilton wrote. [2] In other words, those like Hamilton believed that, given enough time, national security's precarious and subjective nature would trump civil liberties. Additionally, national security’s relation to historical threats against the US and the Supreme Court’s role in expanding the US government’s purview have enabled it to mold policy around tangible national interests—often at the expense of Americans’ constitutional rights. With the introduction of cyberspace, a global domain of interconnected networks that exchange, create, and store user information, policy faces legal complexities regarding the freedom of speech and expression. However, TikTok Inc. v. Garland sets a dangerous precedent that undermines digital rights domestically and internationally, granting governments unconstrained power to regulate digital spaces without proper judicial oversight.  [3]

While the judicial branch has established the significance of national security, the executive branch has often been the primary source of defining national security. In Skinner v. Railway Lab, Justice Thurgood Marshall presciently wrote, “History teaches us that grave threats to liberty often come in times of urgency when constitutional rights seem too extravagant to endure.” [4] These “grave threats” often manifest themselves as forms of national security. [5] In The Federalist Papers of 1787 to 1788, James Madison stressed that domestic security from alien threats was an “avowed and essential object” for preserving the Union. In the US Constitution, the legislative branch is primarily authorized to conduct foreign affairs and define national security. [6] Historically, national security has been an ambiguous concept devoid of legal consensus subject to change from historical and political forces like threats to US domestic security. [7] In Haig v. Agee, Justice Burger reaffirmed that it is “obvious and unarguable that no governmental interest is more compelling than the security of the Nation.” [8] After the September 11 attacks, a new focus was put on terrorism and national security. President George W. Bush, under the National Security Presidential Directive (NSPD-1), stated, “[n]ational security includes the defense of the United States of America, protection of our constitutional system of government, and the advancement of United States interests around the globe. [9]  National security also depends on America’s opportunity to prosper in the world economy.” [10] Given the paucity of a concrete legal framework for national security, the legislative and executive branches are given wide latitude to orient policies around national security matters.  

Until the 21st century, national security has concerned itself with only four domains: land, sea, aerospace, and outer space. The fifth domain, cyberspace, would fundamentally reshape national security. The advent of cyberspace in the late 20th century has complicated American civil liberties and its role in national security. Initially, the Supreme Court interpreted laws protecting child safety by restricting online speech in Reno v. ACLU. [11] The Court declared that the vast and unfettered nature of the Internet allowed American citizens to “become pamphleteer[s].” [12]  

Cyberspace’s global interconnectivity makes it an inseparable part of human life, intertwining freedom of speech and expression within the sinews of the digital realm. [13] The emergence of this new domain allows foreign apps like TikTok, created by the Chinese company ByteDance Ltd., to provide a free market of ideas in short-form video content for over 170 million American citizens. [14] TikTok would find itself at the height of America and China’s trade war, distorting the lines of what defines national security within cyberspace. [15]

In 2020, President Trump issued an executive order under the International Emergency Economic Power Act (IEEPA) prohibiting all interactions between American citizens and ByteDance Ltd. [16] By this time, tensions between China and the US had escalated 2020. [17]  For example, President Trump issued punitive tariffs in 2018 to preserve America’s economic influence within Eurasia and Africa. [18] Despite the Biden Administration reversing Trump’s order, President Biden signed the CHIPS and Science Act, which undermined Chinese-Taiwan chip-making and subsidized domestic production of semiconductors. [19] Biden follows Trump’s footsteps in economically deterring China from threatening a US-centered international order. These legislative acts have oriented US foreign policy to target China’s economic ascension in the Eastern hemisphere. With the proliferation of cyberspace, big tech companies like Meta and Google have repeatedly blamed China for hacking and intellectual property theft. [20] Due to China’s authoritarian communist state led by the Chinese Communist Party (CCP), President Biden’s CHIPS and Science Act against foreign semiconductors was not just an economic reprisal for tech giants like Apple; this represented a shift in American national security policy against Chinese influence within cyberspace. Assistant Director of National Intelligence Casey Blackburn stressed that the “[People’s Republic of China] is the most active and persistent cyber espionage threat to the U.S. government, private-sector, and critical infrastructure networks.” [21] In April 2024, President Biden signed the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACAA) into law, prohibiting apps like TikTok because of their relationship with a foreign adversary (e.g., China). [22 & 23]

For the US government to ban an app as popular as TikTok, it must reveal a compelling government interest. This gives the government an extremely low bar to adjudicate risks relating to national security. The court tackled the question of national security in Holder v. Humanitarian Law Project. [24] The case affirmed that foreign policy “most often be based on informed judgment rather than concrete evidence.” [25] This “informed judgment” must be legally sound on the basis that a compelling enough national interest merits government intervention under the pretense of domestic safety. [26] In other words, requiring lawfully the divestiture of ByteDance Ltd. from its Chinese subsidiary necessitates it being a compelling enough interest to be prohibited in the US. 

The Supreme Court whether the PAFACAA restricted free speech by requiring its divestiture within 270 days or be banned within US borders in TikTok Inc. v. Garland. [27] The Supreme Court decided that the PAFACAA did not violate the First Amendment on content-based grounds and was “facially content-neutral and are justified by a content-neutral rationale.” [28] The Court repeatedly emphasized TikTok’s relationship to the CCP and its capability to collect and manipulate sensitive citizen data. [29] Yet, the Court does not clearly define the “relationship with a foreign adversary” between ByteDance Ltd. and the CCP, leaving ambiguity about the guidelines on establishing a relationship with corporations and foreign adversaries. [30] The Court fails to consider ByteDance’s corporate structure, where its incorporation in the Cayman Islands insulates it from Chinese influence and evades Chinese restrictions on foreign investments. [31] Another facet of TikTok’s viability is its data collection. Because the world is increasingly driven by e-commerce, data has become the new foundation for national security concerns. The Court stressed its unusual data collection practices, extending far beyond normalcy. [32] However, TikTok’s data collection is indistinguishable from other social media apps like Facebook or Instagram. [33] Furthermore, TikTok has transferred its users’ data to Oracle-backed servers, diminishing China’s potential to manipulate data. [34] By not legally establishing ByteDance’s relationship with the CCP, TikTok Inc. v. Garland sets a dangerous precedent that could enable other countries to adopt similar measures to stifle foreign competition that could undercut international free trade policies by the World Trade Organization (WTO) and promote protectionist policies that hurt consumers. [35]

As the world increasingly moves toward cybersecurity laws, we are seeing that countries will further be incentivized to restrict digital rights. Countries like China and India already have iron-fisted cybersecurity regulations, such as the Cybersecurity Law of the People’s Republic of China and India’s Information Technology Act of 2000. [36 & 37] This would have profound implications for foreign operations in China of domestic companies like Apple, Meta, and Google, where governments like the CCP could retaliate with investigations against US companies. [38] Preventing foreign developers from countries like China can hamper freedom of expression in a citizen’s country. Additionally, the Court allowing for TikTok’s prohibition incentivizes users to move to similar platforms. As TikTok fought to stay live in the Supreme Court and during its temporary ban in the US, its users flocked over to RedNote, a Chinese-based alternative wholly under the CCP’s control. [39 & 40] Furthermore, after India banned TikTok, its alternative, Bolo Indya, arose. [41] TikTok’s prohibition enables users to switch to risky options that could jeopardize national cybersecurity and amplify the threat of Chinese communism. 

Washington’s crucible going forward will be to balance the necessity for cybersecurity and American constitutional rights as the cyberspace rapidly develops with the introduction of AI. Among the three branches, the judicial branch's role in defining national security should be interpreting the law and bringing transparency around the subject to bolster public trust. [42] Within the executive branch, the DOJ, which assesses national security threats, should create a strong cross-agency collaboration between agencies like the CISA, NSA, and the FBI to streamline cyber threat response and appraise national security policies appropriately—in the legislative branch, creating a critical cyber infrastructure through comprehensive policies like establishing security standards for federal contractors and expanding intelligence sharing between agencies, businesses, and international allies to promote a centralized effort to combat cyber threats. [43]

While national security efforts continue to focus on countering Chinese influence, our approach to defining national interests must remain grounded in constitutional principles and consider all relevant aspects, such as the imbalance of governmental oversight over national security matters, cyberspace’s interconnectivity, America’s international economic order, and ideological biases. The concentration of power in foreign policy can shift as crises and changing circumstances redefine national security priorities. Additionally, ambiguous interpretations of national security matters like TikTok Inc. v. Garland from the judicial branch create grave precedents allowing legal systems to be weaponized at the expense of American civil liberties. In the future, it is imperative to establish cybersecurity policy standards while simultaneously incorporating crucial cybersecurity infrastructure. 

Edited by Aryana Makati

Endnotes

[1] TikTok Inc. v. Garland, 604 U.S. ___ (2025)

[2] Hamilton, Alexander. Federalist No. 8. In The Federalist Papers, November 20, 1787. The Avalon Project, Yale Law School, online athttps://avalon.law.yale.edu/18th_century/fed08.asp (visited Feb. 23, 2025).

[3] 604 U.S. ___ (2025)

[4] Skinner v. Railway Lab. Execs. Ass'n, 489, U.S. 602, 635 (1989)

[5] Ibid.

[6] US Const Art I, § 8, cl. 11, 13, 16, 17.

[7] Arnold Wolfers, “National Security as an Ambiguous Symbol,” 67 Political Science Quarterly 481, 481 (1952).

[8] 453 U.S. 280 (1981)

[9] Ibid, 307.

[10] The White House, “Organization of the National Security Council System,” National Security Presidential Directive-1, 1, 2 (2001), online at https://irp.fas.org/offdocs/nspd/nspd-1.pdf  (visited Feb. 22, 2025).

[11] 521 U.S. 844 (1997)

[12] Ibid, 870.

[13] Kuehl, n.d. pg. 5

[14] Ibid, 6.

[15] Seo.ai. “How Many Users on TikTok? Statistics & Facts (2025),” 2025, online at https://seo.ai/blog/how-many-users-on-tiktok#:~:text=TikTok%20Key%20Statistics,users%20in%20the%20United%20States (visited Feb. 26, 2025).

[16] Trump, Donald J. Executive Order on Addressing the Threat Posed by TikTok. August 6, 2020. The White House Archives, online at https://trumpwhitehouse.archives.gov/presidential-actions/executive-order-addressing-threat-posed-tiktok/ (visited Feb. 22, 2025).

[17] International Emergency Economic Powers Act (IEEPA), 50 U.S.C. §§ 1701–1708 (1977).

[18] “U.S.–China Economic Tensions: Origins and Global Implications.” China International Strategy Review 1, no. 1 (2019): 1. https://doi.org/10.1007/s42533-019-00002-1

[19] CHIPS and Science Act, H.R. 4346, 117th Cong. (2022)

[20] “Office of the United States Trade Representative Executive Office of the President Four-Year Review of Actions Taken in the Section 301 Investigation: China’s Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation,” 2024, online at https://ustr.gov/sites/default/files/05.14.2024%20Four%20Year%20Review%20of%20China%20Tech%20Transfer%20Section%20301%20(Final).pdf (visited Feb. 23, 2025). 

[21] Cybersecurity and Infrastructure Security Agency CISA. “2024 Year in Review | CISA,” 2024, online at https://www.cisa.gov/about/2024YIR#:~:text=The%20People's%20Republic%20of%20China%20(PRC),the%20Director%20of%20National%20Intelligence (visited Feb .23, 2025).

[22] Foreign Adversary Controlled Applications Act, Pub. L. No. 118-42, Stat. (2024).

[23] Ibid, §3.

[24] 561 U.S. 1 (2010)

[25] Ibid, 5.

[26] Ibid.

[27] 604 U.S. __ (2025)

[28] Ibid, 10.

[29] Ibid, 13.

[30] Ibid, 19.

[31] Campo, Richard. “Is TikTok a National Security Threat?” Chicago Policy Review, July 26, 2023, online athttps://chicagopolicyreview.org/2023/07/26/is-tiktok-a-national-security-threat/ (visited Feb. 23, 2025).

[32] Ibid.

[33] PIRG. “Demystifying TikTok Data Collection,” December 10, 2024. https://pirg.org/articles/demystifying-tiktok-data/ (visited Feb. 23, 2025).

[34] Velaw.com. “TikTok and Oracle Ink Data-Storage Agreement in Apparent Effort to Avoid Further CFIUS Scrutiny | Insights | Vinson & Elkins LLP,” 2022, online at https://www.velaw.com/insights/tiktok-and-oracle-ink-data-storage-agreement-in-apparent-effort-to-avoid-further-cfius-scrutiny/ (visited Feb. 23, 2025).

[35] Peng, S.-y. “Cybersecurity Threats and the WTO National Security Exceptions.” Journal of International Economic Law 18, no. 2 (May 25, 2015): 449–78. https://doi.org/10.1093/jiel/jgv025.

[36] Jyh-An Lee, “Hacking into China's Cybersecurity Law,” Wake Forest Law Review 53 (2018): 60.

[37] “Ministry of Law, Justice and Company Affairs (Legislative Department),” n.d., online at https://eprocure.gov.in/cppp/rulesandprocs/kbadqkdlcswfjdelrquehwuxcfmijmuixngudufgbuubgubfugbububjxcgfvsbdihbgfGhdfgFHytyhRtMjk4NzY= (visited Feb. 23, 2025).

[38] Soo, Zen. “China Launches an Antitrust Probe into Google. Here’s What It Means.” AP News, February 4, 2025, online at https://apnews.com/article/google-china-antitrust-investigation-tariffs-ab02b906733666cb0d348d2b416b7fa5 (visited Feb. 23, 2025).

[39] Built In. “The TikTok Ban: What Happened, and Will TikTok Actually Go Away? | Built In,” online at ). https://builtin.com/articles/us-tiktok-ban#:~:text=The%20justices%20set%20the%20ban,for%20your%20patience%20and%20support (visited Feb. 23, 2025).

[40] Fellini, Peter. “Chinese RedNote App Rises amid TikTok Ban: New Privacy Concerns.” Compassitc.com, January 17, 2025, online at https://doi.org/102378065430/1737480485238 (visited Feb. 23, 2025).

[41] Patwa, Priyadarshini. “Indian Alternative to Chinese Apps like TikTok, CamScanner, Shein, and More.” Entrepreneur. Entrepreneur Media India, July 31, 2020, online at  https://www.entrepreneur.com/en-in/technology/indian-alternative-to-chinese-apps-like-tiktok-camscanner/354095 (visited Feb. 23, 2025). 

[42] Marbury v. Madison 5 U.S. 137, 138 (1803)

[43] Flowers, Angelyn, Sherali Zeadally, and Acklyn Murray. “Cybersecurity and US Legislative Efforts to Address Cybercrime.” Journal of Homeland Security and Emergency Management 10, no. 1 (January 1, 2013), online at . https://doi.org/10.1515/jhsem-2012-0007 (visited Feb. 23, 2025).