Tag: TikTok

On January 17, 2025, the Supreme Court delivered a landmark decision in TikTok Inc. v. Garland, upholding the constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act (“The Act”). The Act’s challenged provision prohibits any U.S. company from providing services to “distribute, maintain, or update the social media platform TikTok, unless the platform is severed from Chinese control.” However, the Act also creates an exemption from the Act’s prohibitions if the foreign adversary controlled application, aka TikTok, undergoes a “qualified divestiture.” The President determines when a “qualified divestiture” has taken place by ensuring that the application will “no longer be controlled by a foreign adversary,” specifically in regard to the apps’ operation of the content recommendation algorithm and the apps’ data sharing.

The central issue in TikTok Inc. v. Garland was whether the Act violated the First Amendment. TikTok argued that the law infringed upon its First Amendment rights, claiming that it was being unfairly targeted as a foreign adversary-controlled application and that the divestiture requirement placed an unconstitutional burden on free speech.

However, the Supreme Court disagreed, ultimately finding that the Act was a content-neutral law that was not in violation of the First Amendment. In order to be considered a content-neutral law, the Act needs to advance “important government interests unrelated to the suppression of free speech and … not burden substantially more speech than necessary to further those interests.” As for the “important government interests” the Act was pursuing, the Court highlighted Congress’s content-neutral justification for the Act’s provisions, which was to prevent China from gathering the private data of over 170 million U.S. citizens. Specifically, Congress was trying to address the concern that TikTok’s parent company, ByteDance Ltd., is a company operated from China, which makes it subject to Chinese laws that require the company to “assist or cooperate” with the Chinese government’s “intelligence work” and to ensure that the Chinese Government has “the power to access and control” the company’s private data.

The Court also explained that the Act’s prohibitions are not more burdensome than necessary because the prohibitions are a conditional ban on the app, which will be lifted if a “qualified divestiture” between TikTok and ByteDance, Inc., its parent company, is achieved. This conditional ban is necessary, the Court reasoned, since without the divestiture, the U.S.’s data collection concerns cannot be properly addressed.

As for what happens now, President Trump granted TikTok Inc. a 75 day extension to become in compliance of the Act. Therefore, unless Tik Tok has completed a qualified divesture by the end of Trump’s extension deadline, TikTok users may need to find another place to post and consume their media content.

For U.S. TikTok users, it is important to know a few things moving forward: Some users may wonder, “What rights do I have to the content I have created on TikTok? Can I use my content on other platforms? Can TikTok continue to use my content if I am no longer able to access the site?” First, yes, TikTok content creators on the app do own the content that they make and distribute on TikTok. The content creators also own the copyright to the content they make through the app. Content creators can also have the right to download their content to their personal devices and post their content to other platforms, as long as the users comply with both TikTok’s and the other platform’s user guidelines.

As for the last question, yes, TikTok does have the right to use the content that you posted and uploaded to their app even if you are no longer utilizing the application. Once you have uploaded “User Content” to TikTok, TikTok can, among other things, distribute, transmit, republish your videos worldwide and to other third parties without your consent.

This Supreme Court decision marks a pivotal moment in the ongoing struggle between the protection of technology-based free speech and national security concerns. When or if Congress considers applying the Act’s prohibitions to other social media platforms, how the Court addresses the constitutionality of those future challenges will be crucial to watch.

This alert serves as a general summary and does not constitute legal guidance. Please contact us with any specific questions. When it matters in Michigan, we are the trusted legal advisors for businesses and individuals.

Andrew G. Martin is an experienced registered patent attorney with history working in the automotive, electrical, and agricultural industries. He regularly advises startups and small businesses on the patent and trademark prosecution process, assisting clients from start to finish. You can reach him at 517.377.0834 or at amartin@fraserlawfirm.com.

Taylor Mikkelson and Jennie Brooks are law clerks at Fraser Trebilcock, both currently 2L at Michigan State University College of Law.