WASHINGTON — Before former Rep. Mike Gallagher, R-Wis., quit Congress in April, the Green Bay Republican chaired the special House committee investigating China. His last act on Capitol Hill was getting bipartisan support and President Joe Biden’s signature on his legislation to separate TikTok from its Chinese-owned parent company, ByteDance.
He said it was necessary to protect national security, an argument that was advanced before the Supreme Court on Friday.
“All the act is doing is trying to surgically remove the ability of a foreign adversary nation to get our data and to be able to exercise control over the platform,” said Elizabeth Prelogar, the U.S. Solicitor General.
The Court heard arguments for two-and-a-half hours Friday on ByteDance’s challenge to the law, which would ban TikTok in the U.S. on Jan. 19, unless ByteDance sells it. TikTok said the law violates its First Amendment rights.
“In 10 days, TikTok wants to speak,” said Noel J. Francisco, a lawyer for TikTok. “In 10 days, because this law was passed, TikTok cannot speak unless ByteDance executes a qualified divestiture.”
Several of the justices questioned that argument.
“The statute only says to this foreign company, ‘Divest or else,’ and leaves TikTok with the ability to do what every other actor in the United States can do, which is go find the best available algorithm,” said Justice Sonia Sotomayor.
“Congress is fine with the expression. They're not fine with a foreign adversary, as they've determined it is, gathering all this information about the 170 million people who use TikTok," Chief Justice John Roberts added.
Rep. John Moolenaar, R-Michigan, succeeded Gallagher as head of the House China committee. He said he hopes the justices allow the law to take effect on schedule, so that President-elect Donald Trump can negotiate a “deal of the century” to stave off the ban.
“Ultimately, there is value in Tiktok,” Moolenaar said. "It's simply something that has to be reoriented so that it is not giving an adversary undue influence and access to Americans. And so, I believe that this would begin a serious negotiation.”
A group backed by billionaire Frank McCourt and Shark Tank host and investor Kevin O’Leary has put in an offer to buy TikTok. Moolenaar said there may be other offers too.
“ByteDance’s argument that there are no viable options is just not accurate,” Moolenaar said. “When people realize the extent of the espionage, and the stealing of data that's already happening, and the cyber warfare that the CCP is conducting, I think they're going to be very grateful when there's American ownership, where we follow the rule of law. And even if it's not American ownership, if it's a non-adversarial nation that's not trying to diminish the United States, I think people will be a lot more comfortable with that.”
During the court hearing, a majority of justices seemed poised to uphold the law. TikTok asked for a preliminary junction blocking the statute to give it time to figure out next steps, but the company conceded that divestment would be “exceedingly difficult” under any time frame.
“When the investors who are investing in ByteDance see that they're going to have to follow American law, I think they're going to start putting pressure on Xi Jinping to say, ‘We should find the best deal possible,'" Moolenaar said.