Introduction
TikTok is a social media app that allows users to create, share, and watch short videos`. As of the past few years, there has been an ongoing issue of whether or not TikTok is threatening the United States’ national security. The rapid rise of this app has caused concern in national security, data privacy, and limits of government intervention in the digital age. As one of the most popular social media platforms, TikTok has over 1 billion users worldwide and over 170 million users in the United States. However, the app is owned by ByteDance, which is the Chinese-owned mother company. This raised concerns from U.S. lawmakers and regulators about the data security and potential foreign influence.
The idea of national security vs. TikTok became a concern in 2020 under the presidency of Donald Trump. The United States government has tried to take action on this through executive orders, legislative proposals, and regulatory investigations. The ban creates tension between the constitutional rights of free speech and the powers vested in the commerce clause. On the other hand, governmental interests of national security and American companies’ economic freedom are also at stake. This law review will analyze the legal and constitutional arguments surrounding the TikTok ban, exploring its implications for administrative law and corporate regulation and what all of this could mean for the future of the digital age. By examining key judicial decisions starting with the original national security threat in 2020, this review aims to provide a comprehensive understanding of the TikTok controversy and its broader impact on the Constitution and rights of American citizens.
Background and Case Law
First Amendment rights, executive authority, and national security issues are at the center of the legal controversy surrounding the TikTok ban in the US. Laws that provide the federal government authority to control foreign-owned businesses doing business in the United States, especially when national security is at stake, risk setting the precedent for a prohibition of this type. ByteDance Ltd. v. United States and TikTok Inc. v. Trump are two significant decisions that have shaped the legal discussion around the TikTok ban and the potential need for the government to set a precedent on social media regulations.
In TikTok Inc. v. Trump, No. 1:20-cv-02658 (D.D.C. 2020), TikTok disputed an executive order issued by President Donald Trump that attempted to ban the app under the International Emergency Economic Powers Act (IEEPA). The court questioned whether the president had the right to ban a popular social media platform under the IEEPA. This act gives the president the power to regulate economic activity in response to a national emergency (50 U.S.C. §§ 1701–1708, “International Emergency Economic Powers Act”). Several national situations have been solved through the IEPA, including the Iran Hostage Crisis (1979), terrorism-related sanctions (after 9/11), North Korea sanctions, Russian interference in U.S. elections (2018), and Venezuela sanctions (2015). IEPA has been used more than fifty times since it was passed in 1977. On August 6th, 2020, President Trump issued Executive Order 13942, attempting to prohibit transactions with ByteDance, which would ban the app in the U.S. TikTok responded to this by filing a lawsuit in the U.S. District Court for the District of Columbia, which would challenge the executive order made by President Trump. On September 27th, 2020, Judge Carl J. Nichols granted a preliminary injunction, blocking the enforcement of the executive order. The court found that TikTok was likely to succeed on its claims that the order exceeded the president’s authority under the IEEPA and violated the First Amendment. This decision prevented the immediate ban of TikTok in the U.S. The legal battle continued, and on December 7th, 2020, Judge Nichols fully blocked the Trump administration’s attempt to ban TikTok, ruling that the president’s emergency economic powers did not authorize the ban. The case was dismissed in July 2021 after President Joe Biden got rid of the executive order, leaving the legal challenges up in the air. This leads to the most recent legal issues, TikTok v. Garland.
TikTok v. Garland addressed the legality of the Protecting Americans from Foreign Adversary Controlled Applications Act. This court case is the current case being spoken about when hearing about the TikTok ban. The PAFACA was signed into law by former President Joe Biden, with overwhelming approval from Congress, in April 2024, and it mandated that apps deemed controlled by other countries that are considered a national security threat will be either transferred from foreign control to American control or will be banned in the United States. TikTok was a topic of conversation when creating this act because of the potential concerns of data security, along with the influence of the Chinese government over ByteDance.
TikTok and ByteDance filed a lawsuit in response to the PAFACA against the U.S. Attorney General, Merrick Garland. This was done on the grounds that PAFACA violates First Amendment freedom of speech protections, as well as the Fifth Amendment’s due process. The company explained that if TikTok is taken away, this will infringe on the user’s ability to exercise free speech rights, along with the fact that the United States government had only been concerned about potential security threats, not current ones. The U.S. Court of Appeals for the District of Columbia upheld the law in December 2024, which implied that there are real national security concerns and the restrictions in place by the PAFACA are in alignment with the concerns. On January 17th, the Supreme Court of the United States upheld that the PAFACA is constitutional and that Congress was able to prove the intermediate scrutiny standard due to a legitimate security interest. Following this decision, TikTok had the decision to divest its U.S. operations by January 19th, 2025, or cease operations domestically. TikTok had temporarily suspended its services in the U.S. on January 18th because the company refused to divest before the deadline given. This ban had only lasted a few hours and was available for users who still had the app on their phones the next day, due to President Donald Trump signing an executive order that stopped the enforcement of the ban for 75 days. The future of TikTok and national security for the United States still remains a question, but what the Court has decided for now is a continuation of a path of deference to national security interests and its reliance on intermediate scrutiny. This continues to raise concerns for the future of TikTok and ByteDance for users all across America. The question now is what is likely to happen based on previous decisions, and can access to a foreign-owned platform itself represent a form of protected expression?
According to the United States Congress, Congress shall make no law prohibiting the freedom of expression. Protected expression is an extension of the First Amendment that also protects acts of the message being portrayed, not just actual words or statements. Examples of this would be burning a flag or, in this case, skits or short videos being posted on TikTok. The only expression or type of speech that is not protected includes hate speech, harassment, true threats, defamation, obscenity, child pornography laws, and fighting words. These types of speech will go through a test called the “Imminent Lawless Action” test, which was created in Brandenburg v. Ohio. This is to test if the speech being put in the public is a direct cause of imminent danger; it has to be current, not proposed.
Software, source code, and online communication are examples that U.S. courts have continuously recognized can be considered First Amendment-protected expression. For the courts, protected expression is commonly defined as speech or behavior that expresses ideas, opinions, or information, whether through written text, spoken words, symbolic actions, or digital means (Erwin Chemerinsky, Constitutional Law: Principles and Policies, 5th ed., 2015). The Ninth Circuit ruled in Bernstein v. U.S. Department of Justice, 176 F.3d 1132 (9th Cir. 199), that source code is a form of speech because it transmits mathematical concepts and procedures in a manner similar to that of conventional written communication. In a similar vein, the Supreme Court emphasized in Packingham v. North Carolina, 582 U.S. 98 (2017), that social media platforms and the internet as a whole form a modern public platform for the exchange of ideas and should be fully protected under the First Amendment. Courts have made it clear, therefore, that not every technological activity is considered expressive behavior. For instance, using an app for only business purposes, like doing a transaction without intending to communicate, might not be covered by online protected speech (Chemerinsky, 2015). In accordance with the wider legal definition of protected expression as actions meant to express meaning to an audience, the courts’ main difference is whether the technology or its usage communicates a concept or a message (Texas v. Johnson, 491 U.S. 397, 404 [1989]).
When the official TikTok ban was first announced in December of 2024, many politicians spoke out either in support of it or against it. Those who are in support of the TikTok ban mention that it is more of a national security concern rather than a free speech violation. Representative Josh Gottheimer (D-NJ) has been a loud supporter of the TikTok ban for national security reasons. He publicly stated, “TikTok is a social media platform that has more than 100 million monthly active users. [It] collects far-reaching and advanced data from its users … This data is a huge advantage to the Chinese Communist Party, a known enemy, and their aligned activities.” Representative Cathy McMorris Rodgers (R-WA), chair of the House Energy and Commerce Committee, has also been a loud supporter of the TikTok ban out of concern for United States data. Like Gottheimer, Rodgers ties TikTok with the Chinese Communist Party and the possibility of national security threats. On March 23rd, 2023, she supervised a hearing where Shou Zi Chew, CEO of TikTok, gave testimony about the company’s data security and consumer privacy policies along with its connections to the Chinese government, having to reassure many times that he is in fact Singaporean with no connections to the Chinese Communist Party. These arguments, however, are made in the context of the long-standing methods of surveillance used by the US government. Whistleblower Edward Snowden’s 2013 revelations revealed how the Patriot Act and other laws give organizations like the NSA significant authority to gather information about Americans by working with big tech companies like Google, Apple, and Facebook. Under demand from the government, these companies have given user data to intelligence and law enforcement organizations, which raises very serious privacy concerns. Let’s not forget, there have been past negotiations that Tiktok was going to be sold to Facebook in 2019. Facebook already owns a gigantic share of what Americans consume daily A shocking contradiction results from this past event: the U.S. government has long had extensive access to the data of their own citizens, yet the discussion of “national security threats” only increases when allegedly foreign governments, especially China, are involved.
On the other hand, when the TikTok official ban was first announced in December of 2024, many politicians spoke out against the TikTok ban with concerns of a possible First Amendment violation. Senator Rand Paul (R-KY), a strong opponent of the TikTok ban, argues on First Amendment grounds that banning it would be hypocritical for Republicans to support censoring social media apps due to concern of Chinese domination while condemning censorship in other scenarios, adding that a ban like this would violate fundamental rights. Representative Ilhan Omar (D-MN) is also another strong opponent against the TikTok ban, raising extreme concerns towards a possible First Amendment violation. Omar previously proposed to create legitimate standards and regulations throughout all social media platforms and not just target the platform that “we do not like.” This emphasizes the need for and concerns with complete regulation on privacy that applies to all social media and not just a particular one.
Strong opposition to the intended TikTok ban has been raised by a number of of nonprofit and free speech advocacy organizations, which believe that the First Amendment is seriously threatened by this governmental action. Some groups have been notably vocal, such as the American Civil Liberties Union (ACLU), which warned that “banning TikTok would set an alarming precedent for government control over online platforms” and that the action could be easily repeated against other digital speech platforms in the future (ACLU, 2024). Even though national security issues should be taken very seriously, the ACLU stresses that simply prohibiting entire platforms carries out the risk of removing millions of Americans who use the app for political campaigns, education, and self-expression. In addition, the Electronic Frontier Foundation (EFF) has strongly opposed the ban, claiming that “censorship is not the solution to data privacy concerns” and that more enhanced data protection laws that apply to all tech companies, not just those with foreign ownership, would be more effective solutions (EFF, 2024).
These advocacy organizations have also drawn awareness to the irony of TikTok’s removal due to claimed data privacy concerns, meanwhile ignoring the Patriot Act’s and other laws’ broad surveillance authorities. The nonprofit media rights organization Free Press argues that “the government’s attempt to justify this ban on the basis of national security ignores the extensive data collection practices already conducted by U.S.-based corporations and intelligence agencies” (Free Press, 2025). These organizations claim that focusing on TikTok, in specific, as compared to addressing the overall absence of complete data privacy protections in the US, is more a reflection of political goals than of an honest concern for public safety.
According to Statista, as of February 2025, about 135.79 million United States citizens use TikTok, which makes the United States the largest nation to have active users on the social media platform. The citizens of the United States hold a mix of strong opinions about the TikTok ban, and several debates have been sparking across the nation. Considering Americans perceive TikTok as an important place for entertainment, creativity, a form of education, and a place of community, typically, younger generations like Generation Z are heavily against the ban of the fairly new platform. Most of the time, TikTok has been used by small business owners, influencers, and content creators to grow their brand, make a living for themselves, share their life experiences, and create a bond with their viewers. Because it can reach younger audiences, who are frequently underrepresented in traditional survey methods, TikTok has become a very effective platform for modern polling. For these users who partake in those activities, this ban would strip them of an important source of profit and opportunities for their business to grow. Many argue that targeting TikTok creates a dangerous precedent for the future of censorship of other platforms, and they see the banning of TikTok as an unjust restriction on their rights and an overreach by the US government.
To many people of the younger generation, this ban seems to be particularly aimed at younger generations, who mainly represent a large portion of TikTok’s audience, which increases the anger and suspicion of lawmakers. Many younger people also believe that the ban is possibly an attempt by out-of-touch politicians and government officials to control a platform that has been used to form political movements, spread awareness on issues and policies, and promote a more diverse community, as well as to just silence youth culture. Throughout history, the youth have had many moments where the older generation has tried to silence them and violate their First Amendment right. This concern over governmental control of youth expression connects directly with the Supreme Court’s ruling in B.L. v. Mahanoy Area School District, 594 U.S. (2021), which upheld that students do not “shed their constitutional rights of freedom of speech or expression at the schoolhouse gate” (citing Tinker v. Des Moines, 393 U.S. 503, 506 [1969]); is directly connected to this concern about government control over youth expression, questioning if rulings like these will immediately change, silencing the youth for speaking their mind. Will history start to repeat itself?
However, some Americans are in favor of the banning of TikTok, notably those who are worried and concerned about data privacy and national security. They agree with senators like Senator John Hawley, who believe that TikTok’s connection with the Chinese government and/or the Chinese Communist Party could possibly result in the gathering and misuse of Americans’ personal information that belongs to them. Some supporters believe that a ban is crucial for protecting the country from the possibility of manipulation and foreign surveillance. However, there is doubt regarding whether a ban is the best course of action, even from those who are actually worried about China’s domination. Many suggest that since American apps also gather enormous amounts of user data, like Airbnb, Instagram, and Snapchat, the U.S. government should focus on establishing solid, comprehensive privacy laws that apply to all businesses, not just TikTok, if data usage is really the top concern.
When the U.S. government declared in December 2024 that TikTok would be officially banned on January 19th, 2025, right before the end of former President Joseph Biden’s term, the decision caused an immense amount of outrage nationwide, especially among younger Americans who saw it as politically driven and a hypocritical move. National security concerns, especially the claim that TikTok posed a threat by gathering data on millions of American users for the Chinese Communist Party, were the main justifications used by the government to ban the app. Many Americans reacted to the outrage and irony by downloading and using Rednote, an actual Chinese-owned app that is identical to TikTok in both looks and performance. By pointing out that banning one app while ignoring the larger issue of widespread data collection by both domestic and foreign companies seemed uneven, this act of disregard showed the lack of trust that many people had in the government’s justification. Instead of having a sincere attempt to solve the deeper problems of technological surveillance and data privacy, the broad use of Rednote became an act of protest against what many saw as selective enforcement and political stunts. Many Americans wanted to give a clear message, basically saying, “Since you are going to ban an app we all love because of accusations of it being a Chinese app stealing our data, we will use an actual Chinese app now and give them our data.”
With all things considered, the American citizen’s reaction to the TikTok ban has revealed the opinions of those who are in support or those who are strongly opposed to it. With all these opinions mixed together, there’s a division of the balance between personal freedom and national security, which then creates the discussion of the government’s critical thinking skills when implementing policies that only affect one cause of privacy concerns and not all.
In conclusion, the legal issues, political discussions, and widespread public criticism involving the TikTok ban show a more important struggle of American democracy: the protection of individual constitutional rights, especially free speech, against the defense of national security. The specific targeting of TikTok rather than an extensive review of data protection laws across every platform has raised serious concerns about fairness and political motivation, even though the government’s explanation for the ban concentrates on worries about foreign influence and data privacy. The TikTok ban, whether seen as a justifiable act of national defense or as a risky precedent for censorship, has come to represent the continuous battle to determine the boundaries of governmental interference in the realm of technology, asking significant concerns regarding the future of democracy, free speech, and privacy in the US.