Supreme Court justices express concern about ‘secret evidence’ in TikTok case

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The 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. 

Neil Gorsuch: “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”

Neil Gorsuch: “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. 

Noel Francisco: “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. 

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. 

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. 

Elizabeth Prelogar: “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,” 

Elizabeth Prelogar: “There was actual, factual evidence to show that even during a period of time when the company was representing that it had walled off the US data and it was protected. There was a well publicized incident where bytedance In China surveilled us journalists using their location data. This is the protected US data in order to try to figure out who was leaking information from the company to those journalists.”

John Roberts: “You get to look at it, but your friends on the other side don’t get to look at it. That doesn’t seem fair.” 

That’s the sealed appendix, Mr. Chief Justice. So it’s their information. They can look at it. It’s just under seal to protect their proprietary business information 

TikTok is fighting a law passed by Congress last year that requires its parent company to sell it or be prohibited from operating in the United States. The justices cast serious doubt on TikTok’s free speech arguments Friday. The case will decide the future of the app which is used by 170 million Americans. 

Unless the Justices strike down the law or delay its implementation, the most popular shortform video app in the country will disappear from app stores on January 19. 

Read a full report on the oral arguments here.