Two Supreme Court justices expressed concern about redacted evidence the government presented in the TikTok case, which attorneys for the app were not able to review. According to an attorney representing TikTok users, the evidence is classified and a lower court agreed to make its decision solely based on the public record.
“I’m concerned about the government’s attempt to lodge secret evidence in this case without providing any mechanism for opposing counsel to review it,” Justice Neil Gorsuch said. “I noted that there are mechanisms to read in counsel and that other countries, including our allies, often do that.”
The subject was first raised when Gorsuch asked the attorney representing TikTok a question that he could not answer.
“Well, Your Honor, the problem there is everything that follows what you just read is redacted, and so I don’t know what it says,” Noel Francisco of Jones Day, which represents TikTok, said.
Gorsuch later said the government has made an increased number of appeals to secret evidence in recent years and therefore it’s something Congress should pay attention to.
TikTok is fighting a law passed by Congress in 2024 that requires its parent company ByteDance to sell it or be prohibited from operating in the United States. The justices cast serious doubt on TikTok’s free speech arguments on Friday, Jan. 10. The case will decide the future of the app, which is used by 170 million Americans.
Solicitor General Elizabeth Prelogar made reference to a sealed appendix while she was making her case before the justices. She never said exactly what it contained, she gave a brief overview and urged the justices to read it.
“If you look at that information, it was a wealth of data about Americans that was going to have to go back to China in order for the platform to just continue its basic operations,” Prelogar said.
Prelogar went on to explain that there was factual evidence to show that even when the company said it walled off its U.S. data from China, employees at TikTok’s parent company in China surveilled U.S. journalists in an attempt to learn who was leaking information from inside the company.
“You get to look at it, but your friends on the other side don’t get to look at it,” Chief Justice John Roberts responded to Prelogar. “That doesn’t seem fair.”
“That’s the sealed appendix, Mr. Chief Justice,” Pregolar responded. “So it’s their information. They can look at it. It’s just under seal to protect their proprietary business information.”
Unless the justices strike down the law or delay its implementation, the most popular short-form video app in the country will disappear from app stores on Jan. 19.
Read a full report on the oral arguments here.
