The Algorithmic Iron Curtain
How the TikTok Case Was “Securitized”
Beijing Cultural Review, Issue
Liu Han | School of Law, Tsinghua University
In recent years, the international technology war has become increasingly intertwined with legal warfare (”lawfare”). In 2024, the US Congress passed the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA), which prohibits distributing, maintaining, or updating social media platforms controlled by a “foreign adversary” within the United States unless their US operations are completely divested from their foreign parent companies. TikTok and some of its US users subsequently filed a lawsuit, arguing that the Act violated the US Constitution—particularly by infringing upon the freedom of speech—and requested the court to block its implementation. On December 6, 2024, the United States Court of Appeals for the District of Columbia Circuit (hereinafter “the D.C. Circuit”) ruled that the portions of PAFACA pertaining to TikTok were not unconstitutional.
Subsequently, TikTok appealed to the US Supreme Court, which accepted and ruled on the case with rare speed. On January 17, 2025, the US Supreme Court ruled that PAFACA did not violate the First Amendment, reasoning that the Act did not directly ban TikTok but rather provided a divestiture option, allowing it to continue operating free from foreign government influence. The qualified divestiture method met the principle of necessity, protecting national security while minimizing the impact on free speech. At this point, the path of legal defense has been exhausted; the forced divestiture act remains valid, and TikTok’s fate is left to the discretion of the US administration (i.e., Donald Trump). As of now, Trump has continually extended TikTok’s grace period.
The TikTok case is underpinned by complex geopolitical factors, interwoven with the accelerating process of securitizing US data, algorithms, and platforms. By starting from the issue of “fact-finding” in judicial rulings, this article attempts to unveil the complexities behind the TikTok case.
Factual Issues in Adjudication: How to Identify National Security Threats
It is universally acknowledged that adjudication must base itself on facts and take the law as the criterion. In the observation and analysis of the TikTok case, what is often overlooked is the factual issue: How is the TikTok case determined to be a national security case? Under what procedures should factual issues be resolved? Is there sufficient evidence indicating that TikTok poses a substantial threat to US national security?
First is the issue of characterizing the case. Generally speaking, whether in legal defense or judicial rulings, the narrative style of facts and the organizational presentation of evidence influence the characterization of an event, thereby subtly affecting the trajectory and even the outcome of a case. [1] The TikTok case contains at least two narratives characterizing the event in question. For TikTok and its supporters, this is a story about the US government threatening to ban a social platform, conducting internet censorship, and stifling freedom of expression—a core American value. The US government and its supporters, conversely, describe it as a story of protecting American data security from corporate threats controlled by an adversary nation, maintaining US national security in a digital context, and safeguarding US sovereignty against foreign infringement. The former is a human rights narrative; the latter, a sovereignty narrative.
Which narrative do US courts lean towards? The oral arguments in the court of first instance provided a clear clue. During the oral arguments on December 6, 2024, Chief Judge Sri Srinivasan asked TikTok’s attorney: “Assume the United States is at war with a country. In that circumstance, could a foreign country own a media company in the United States? If the war continued, do you think the United States could not ban a hostile nation from controlling our media?” For the judge, the answer was obviously affirmative.
The factual descriptions in both the trial and final judgments carry a certain qualitative judgment. For example, in the Supreme Court’s final judgment, the Court’s opinion cited a US Congressional report to describe TikTok’s legal nature: “TikTok is operated in the United States by TikTok Inc., a U.S. company incorporated and headquartered in California. TikTok Inc.’s ultimate parent is ByteDance Ltd., a privately held company that conducts business in China. ByteDance Ltd. owns TikTok’s proprietary algorithm, which was developed and is maintained in China. It also develops some of the source code that runs the TikTok platform. ByteDance Ltd. is subject to Chinese laws that require it to ‘assist or cooperate with’ the Chinese government’s ‘intelligence work’ and ensure that the Chinese government has the ‘power’ to ‘obtain and control’ private data held by the company.” [2]
American readers reading these factual descriptions would likely conjure the following story: an internet company practically controlled by Chinese citizens collects data on American netizens and uses the Douyin algorithm to push content, thereby threatening US national security.
Naturally, the aforementioned content contains misreadings of relevant Chinese laws. However, it is precisely based on these misreadings that the judgment, set against the macro-backdrop of contemporary Sino-US relations, constructs a narrative of China infringing upon US sovereignty by controlling commercial companies operating in the US, aligning with the legal characterization of a “Foreign Adversary.”
Second is the procedural issue of fact-finding. Normally, federal cases must go through three tiers: trial in a district court, appeal in a circuit court, and review by the Supreme Court (if the Supreme Court grants certiorari). Among these, the district court’s trial generally involves discovery, ensuring that both parties have ample opportunity to present evidence and cross-examine. As an appellate body, the circuit court generally does not reinvestigate facts but defers to the factual findings of the trial court, focusing solely on reviewing the application of law unless there is a clear error. The US Supreme Court accepts applications for further appeal only in very rare circumstances (requiring the agreement of at least four of the nine justices, accepting only about 80 cases annually).
Deviating from standard arrangements, PAFACA directly vested the D.C. Circuit with original jurisdiction over the case, thereby bypassing the district court and compressing the space for judicial review. Specifically, this arrangement reduced TikTok’s remedial opportunities from a maximum of three to a maximum of two, while concurrently diminishing the intensity of the court’s scrutiny over factual issues. Under normal procedures, district court trials provide ample space for evidence presentation, cross-examination, and factual debate. However, because the TikTok case was heard directly by the Circuit Court, the plaintiffs were almost entirely unable to adequately challenge the evidence submitted by the government. The trial process and final judgment also demonstrated that the D.C. Circuit almost entirely accepted the US government’s fact-finding and submitted evidence. It can be argued that throughout the entire process from legislation to adjudication, US authorities had clearly anticipated potential judicial litigation and constitutional challenges, taking preventive measures through procedural design. This arrangement not only reflects a clear legislative orientation serving national security but also demonstrates a derogation of procedural justice when handling cases involving a “foreign adversary.”
Third is the issue of evidence and proof. Whether TikTok genuinely threatens US national security requires evidence presentation and cross-examination for the adjudicator to make a fair assessment. Yet in the TikTok case, both the Circuit Court in the first instance and the Supreme Court in the final instance chose to accept the evidence provided by the US government.
In the initial judgment, the Circuit Court cited judicial precedents, arguing that courts lack the capacity to judge national security issues and must defer to the government: “The government offers two national-security justifications for the Act: countering (1) China’s efforts to collect Americans’ data and (2) the risk that China will covertly manipulate TikTok’s content... In reaching this conclusion, the Circuit Court follows the US Supreme Court’s practice of according the utmost deference to the government’s ‘assessment of the facts’ because the Act ‘implicates sensitive and weighty interests of national security and foreign affairs.’” [3] In the Circuit Court’s view, TikTok admitted to collecting a vast amount of US user information, and the US government worried that China might use this data to threaten US data and intelligence security while hindering the competitiveness of the artificial intelligence industry; therefore, the government’s concerns were more than mere speculation. [4]
During the initial trial, when asked how national security was threatened, the US government stated it could not disclose details because classified national security materials could not be made public. Feeling this was unfair, TikTok subsequently raised objections. The US government insisted it could not disclose details, emphasizing merely that it possessed relevant materials, including undisclosed congressional hearing records, and proposed submitting internal documents ex parte for the court’s review. However, this clearly violates the principle of neutral adjudication, sparking intense debate between the two parties. In the final judgment, although the court mentioned this issue, it did not specify a resolution. [5]
In the final judgment, the US Supreme Court similarly expressed deference to the government’s judgment on the fact-finding of national security threats. [6] Citing multiple judicial precedents, the US Supreme Court held that neither the ban nor the divestiture requirement exceeded the scope necessary for national security objectives. “The government’s concerns regarding TikTok’s data collection do not exist in isolation. The record reflects that China ‘has for years engaged in efforts to amass structured datasets, particularly regarding Americans, to support its intelligence and counterintelligence operations.’” [7] When TikTok questioned the probability of a national security threat, arguing that China was unlikely to compel TikTok to hand over user data for intelligence collection purposes, the US Supreme Court stated: “Substantial deference must be accorded to Congress’s predictive judgments.” [8] The rationale was that “sound policymaking often requires legislators to forecast future events and to anticipate the likely impact of these events based on deductions and inferences for which complete empirical support may be unavailable.” [9]
In the TikTok case, the courts’ practice of accepting government evidence is closely related to their prudent attitude on national security issues, embodying the principle of judicial deference; namely, courts generally trust the judgment of the President or Congress in national security cases because such matters involve complex political and professional issues, and the government possesses more intelligence and expertise than the courts. The TikTok case is a continuation of the principle of judicial deference.
The Shift in US Courts’ Attitude Toward TikTok: The Intertwining of Law and Politics (2020–2025)
This is not the first time TikTok has sued the US government. In 2020, when the Trump administration attempted to ban or force the sale of TikTok, TikTok also resorted to federal courts to defend its rights. The federal courts at the time ruled in favor of TikTok. By 2024 and 2025, neither the Circuit Court nor the Supreme Court stood on TikTok’s side anymore. How did this shift in judicial attitude come about?
As previously noted, the core factual issue in the TikTok case lies in how the court determines that TikTok poses an actual national security threat to the US, rather than relying solely on speculation or hypothesis. During the determination process, all evidence regarding national security threats comes from the government; thus, the key lies in whether the court credits the government’s judgment. This is an epistemological issue: the court must have a certain preconception of the overall posture of national security threats before deeming the case to fall within the realm of national security, thereby choosing to respect and trust the government’s—rather than the involved enterprise’s—factual narrative. Of course, courts do not blindly accept government judgments but decide whether to trust the government after a preliminary assessment of the national security issue. The courts’ deferential attitude reflects their preexisting macro-understanding of national security threats, an understanding not based on legal judgment but influenced by multiple factors, including the political landscape and public opinion. After all, the law cannot tell the court what the actual situation is in a specific context. The court’s fact-finding is therefore not merely a technical conclusion but the product of a specific context in a specific era; the court’s ruling is based not only on the evidence itself but is also profoundly influenced by the political atmosphere.
Therefore, we must examine how the US political sphere and society have reached a universal consensus in recent years regarding TikTok’s threat to national security, leading courts to conclude that TikTok genuinely poses a threat to US security, thereby triggering the principle of judicial deference.
The 2020 TikTok ban incident was primarily related to decisions within Trump’s first term and did not evolve into an overarching national security issue. In 2020, Trump attempted to ban TikTok via executive order, but this was supported by only a few Republican lawmakers, such as Senator Tom Cotton and Chuck Schumer. At that time, Republican Senator Josh Hawley also proposed a bill aimed at preventing US data from flowing to foreign countries, but it was supported only by the aforementioned two senators. Many Democrats criticized the Trump administration’s actions, worrying the move might infringe upon freedom of speech and suspecting executive overreach. As for whether TikTok truly constituted a national security threat, experts were also divided. After Biden took office in 2021, he adopted a more moderate stance on TikTok, emphasizing that determinations of national security threats must be supported by solid evidence. It can be said that at that time, US political circles and society had not yet reached a consensus on whether TikTok posed a substantial national security threat.
Against this backdrop, when TikTok sued the US government in 2020, it is understandable why the adjudicating court halted the implementation of the Trump administration’s ban on TikTok. From a legal perspective, the legal basis for Trump’s executive order at the time was the International Emergency Economic Powers Act (IEEPA) and the National Emergencies Act (NEA); both laws granted the President the power to issue bans during a state of emergency. TikTok argued that the ban exceeded the scope of the President’s emergency powers under IEEPA because TikTok did not pose an urgent or severe threat to national security. Furthermore, IEEPA prohibits the President from regulating or banning the import or export of “information or informational materials,” constituting an exception to emergency powers. The US government argued that courts typically defer to the President’s judgment in responding to national security threats. The court acknowledged this, but regarding whether TikTok constituted a national security threat (and whether a ban was an effective means to counter the threat), the court found the evidence provided by the government insufficient. [10] Consequently, federal judge Carl Nichols, a Trump appointee, ruled that Trump’s executive order was ultra vires (an overreach of authority); if the case proceeded, TikTok had a high probability of success. Therefore, the judge issued a preliminary injunction against Trump’s executive order, halting its implementation.
In another concurrently ongoing case, TikTok creators sued Trump, arguing his executive order exceeded his authority and infringed upon freedom of speech. The court determined that “the government’s descriptions of the national security threat posed by the TikTok app used hypothetical language,” noting that the government’s legal briefs repeatedly used the word “might.” Clearly, the court deemed the evidence of a threat to national security insufficient. [11] Thus, the court sided with the TikTok creators, ruling that the executive order prohibiting new downloads of the TikTok app violated IEEPA’s informational materials exception and would cause TikTok creators to lose millions of followers and related brand sponsorships. Accordingly, the judge granted a preliminary injunction blocking the US Commerce Department from implementing the TikTok ban.
It is thus evident that, given the lack of clarity on whether TikTok truly constituted a major threat to US national security, the judge constructed the legal argumentation framework from the perspective of legal constraints on government power. Within this framework, TikTok clearly possessed a higher chance of winning; therefore, the judge decided to temporarily enjoin the executive order. The core of the issue lay in the continuing uncertainty of the factual determination of national security. At that time, the dispute between TikTok and the US government had not yet been directly categorized as a national security law case; courts still needed to strike a balance between national security interests and the rule of law, and between national sovereignty and civil liberties.
After 2023, a bipartisan consensus gradually formed that TikTok posed a major threat to US national security. In March 2023, the prolonged grilling of TikTok CEO Shou Zi Chew in the US Congress, particularly the sharp questioning by lawmakers from both parties, represented the widespread anxiety within US political circles regarding TikTok’s threat to US national and data security. In 2024, PAFACA, aimed at banning or forcing the sale of TikTok, received overwhelming bipartisan support: a 352-to-58 vote in the House of Representatives, and a 79-to-18 vote in the Senate. This cross-party consensus led federal courts to lean more heavily towards supporting the government’s national security-based stance when hearing related cases, particularly on major issues like data security. Federal courts began to place greater weight on and respect the executive branch’s assessments of national security issues. This was as if a critical switch had been flipped, causing a rapid and significant shift in the situation.
Undoubtedly, a multitude of factors contributed to this shift, including changes in Sino-US relations, shifts in the balance of technological power, and the expansion of Chinese internet companies in the US. However, changes in US domestic politics also warrant attention. One aspect is the change in administrations. Although Biden negated and rescinded many of Trump’s policies, the attitude of containing Chinese tech companies remained; the only change was an adjustment in the methods of containment. Compared to the more aggressive and decentralized strategy of the Trump administration, the Biden administration was more meticulous and organized, implementing its strategy by rallying allies and employing legalized methods. Another aspect is Trump’s use of social media as a political tool, with social media’s influence in US politics continuously expanding. This understanding of weaponized social media further generalized into the American mindset for handling international issues—social media is not only a tool for domestic political struggle but also a weapon for global strategic competition.
When the US judicial branch perceived an increasingly tense national security situation, it naturally leaned towards deferring to the government’s factual judgments in such matters. This, in turn, deepened the judges’ perception of an increasingly severe national security landscape. Since Congress and the President had jointly determined that national security was under threat, courts were more easily convinced of the existence of this threat, leading to greater trust in the decisions of Congress and the White House. Through this cyclical reinforcement, judicial deference to executive decision-making became increasingly pronounced and profound. The TikTok case was ultimately constructed as a case with a strong national security law nature and a weak free speech rights attribute.
Data and Algorithm Governance: The National Securitization of Internet Issues
It is worth further inquiring why internet, data, and algorithm issues have evolved into national security issues in the US. Broadly speaking, related US laws and policies have experienced an evolution from “cyber defense” to “digital sovereignty,” representing a major shift in the US conception of cyberspace governance. From the massive societal application of the internet in the 1990s to the widespread popularization of smartphones in the 2010s, US cyber policy primarily focused on protecting critical infrastructure from foreign attacks and promoting the development of a globally open internet. However, towards the late 2010s, the policy focus gradually shifted to safeguarding digital sovereignty—namely, control over data, algorithms, and platforms.
Initially, US internet laws and policies were primarily founded on freedom of speech, broadly facilitating the growth of internet enterprises and the free flow of information, even advocating for internet freedom globally, with relatively light regulatory undertones. Attention to security issues was relatively limited, focusing primarily on attacks targeting physical and logical network infrastructure, especially defending against hacking. In 1998, President Clinton issued a decision directive laying the foundation for protecting critical infrastructure, with its core being the prevention of cyberattacks. [12] After the 9/11 attacks in 2001, the importance of cybersecurity within US national security strategy gradually elevated. In 2003, the Bush administration released The National Strategy to Secure Cyberspace, outlining measures to protect federal networks and critical infrastructure while continuing to adhere to the principle of the free flow of information. In 2009, the establishment of the US Cyber Command (USCYBERCOM) marked the militarization of cyberspace and the fortification of cybersecurity defense. At the same time, however, the US still championed a global open internet and opposed the cyber sovereignty models advocated by other nations. For instance, regarding the reform of the Internet Corporation for Assigned Names and Numbers (ICANN), the US insisted on a multistakeholder model rather than a multilateral governance approach controlled by various governments.
In the late 2010s, the US began to move beyond mere cyber defense, pivoting towards controlling domestic digital assets against foreign influence. Contributing factors included the increasingly complex Sino-US relationship, as well as the rise of China’s technological prowess and the overseas expansion of its tech companies. In 2018, the US government began restricting the deployment of technologies and applications from Chinese companies like Huawei in the US, citing national security risks. Through relevant legislation, it explicitly prohibited the US government and its contractors from using telecommunications equipment and services provided by Chinese companies such as Huawei and ZTE, and restricted these enterprises from entering the US federal contracting market. [13] This marked the first time US policy shifted from cyber infrastructure protection to digital sovereignty. The Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA) granted the Committee on Foreign Investment in the United States (CFIUS) the authority to review foreign investments in data-intensive sectors, particularly scrutinizing companies from China or those with a Chinese background. [14] In November 2019, CFIUS began reviewing ByteDance’s 2017 acquisition of Musical.ly.
In the 2020s, legal and policy actions surrounding data and algorithm security became more frequent. In 2020, the Trump administration attempted to ban TikTok and WeChat on the grounds that they allowed foreign entities to access US user data, constituting a national security threat. [15] The Biden administration further fortified digital sovereignty policies: in 2023, an executive order on AI and cybersecurity introduced strict controls over access to AI models and data, specifically targeting “foreign adversaries.” [16] The Biden-Harris Administration’s National Cybersecurity Strategy, released the same year, emphasized the importance of data security, technology supply chains, and AI regulation for national security. Technological competition in fields such as 5G, algorithms, data, and artificial intelligence has become a core component of US defense and intelligence strategy, and data security issues have become the centerpiece of the national security agenda. The question of whether Chinese tech companies pose a threat is no longer understood merely as an issue of economic or technological competition, but has been elevated to the level of strategic confrontation. PAFACA, related to TikTok, is clear evidence of this, marking the first time the US has passed legislation to force the divestiture of a major digital platform to safeguard national security.
In this phase, the establishment of the “Foreign Adversary” concept is particularly noteworthy. As cybersecurity gradually integrates into national security, specific US attention toward China and its tech companies has progressively intensified. The “Foreign Adversary” concept is the core manifestation of this. This concept was formally introduced in government documents for the first time on May 15, 2019, when Executive Order 13873, signed by Trump, defined it as “any foreign government or foreign non-government person engaged in a long-term pattern or serious instances of conduct significantly adverse to the national security of the United States or security and safety of United States persons.” In 2021, pursuant to this order, the US Department of Commerce designated China, Cuba, Iran, North Korea, Russia, and Venezuela as “foreign adversaries.” The 2024 PAFACA designated TikTok as an application controlled by a “foreign adversary,” highlighting the extreme sensitivity of the US to data privacy and ideological security. The Act set a higher barrier to entry for applications controlled by “foreign adversaries” (explicitly naming TikTok), further solidifying the legal status of the “foreign adversary” concept in the cybersecurity domain.
Compared to the Cold War-era concept of “Enemy State” or “Hostile Nation,” “Foreign Adversary” is more targeted. The “Enemy State” concept was primarily used in the context of comprehensive US-Soviet confrontation, encompassing ideological leadership struggles and military conflicts. “Foreign Adversary,” however, is a response to 21st-century asymmetric threats, reflecting technological updates and changes in confrontational means—namely, the transition from cyberattacks to economic competition, and then to data control. The “Foreign Adversary” concept focuses more on specific actions and domains (such as supply chain security, data and algorithmic security, cybersecurity, and critical infrastructure protection), whereas “Enemy State” points toward total confrontation between nations (including states of war, economic and financial sanctions, foreign policy, and military conflicts). To borrow the terminology of Harvard law professor Noah Feldman, who participated in drafting the post-war Iraqi constitution, the “Foreign Adversary” concept corresponds to a “cool war”—a state of simultaneous cooperation and competition, of mutual economic dependence coupled with strategic rivalry, where issues like cyber, data, and algorithms are the “hot” aspects of this “cool war.” [17]
Through the definition and application of “Foreign Adversary,” the US legal system has established a strict national security barrier. This affects not only platform and software service enterprises but will also impose higher entry requirements on e-commerce, in-vehicle software, and even equipment manufacturers. This trend of integrating cybersecurity into national security will be difficult to reverse in the short term, as the perceived national security threats have become deeply embedded in its political consciousness and legal system.
Rethinking the US Constitution and Courts
The TikTok case has established a precedent in US constitutional law: in a national security context, the US government has the authority to restrict social media platforms controlled by foreign adversaries without necessarily violating the First Amendment principle of free speech. Future legislation involving the regulation of digital platforms is more likely to garner judicial support, provided a national security rationale can be proven. Although the First Amendment of the US Constitution is regarded as a supreme legal principle, this tradition may undergo adjustments against the backdrop of international strategic digital competition. The TikTok case reflects a reinterpretation of the First Amendment by US courts, particularly in digital platform cases. Transitioning from a past emphasis on protecting free speech to a present prioritization of national security, US courts have begun to accept the government’s argument that restricting foreign-controlled social platforms under specific national security threats is acceptable, even if it may infringe upon free speech.
This alters the fundamental attitude of US law toward the internet that has persisted for a long time. If the digital economy and artificial intelligence that countries are pushing for can be likened to large factories, data is the core raw material, and algorithms are the core production technology. The US has long complained about other nations’ data localization laws, criticizing their practices of mandating the disclosure of algorithmic source code. However, judging by the regulatory measures the US government has begun to target foreign tech companies, the “boomerang” has hit the US itself. [18] US national security laws have gradually expanded into domains such as data, algorithms, and artificial intelligence. Judging from the TikTok case, the judicial system has not impeded this trend.
In a broader sense, the TikTok case also prompts us to rethink the US Constitution and the US judiciary. Since the reform and opening up, Chinese academia and even society have formed a popular impression of the US: the courts responsible for judicial review act as a critical force balancing the political branches (including Congress and the President) and are vital institutions for safeguarding civil rights. This impression largely stems from the power of judicial review established in Marbury v. Madison (1803), as well as highly influential cases like Roe v. Wade (1973) and United States v. Nixon (1974). In these cases, courts demonstrated their checks-and-balances role by striking down congressional legislation or restricting presidential power, feats that are highly praised.
However, the judgment in the TikTok case reveals the complex attitudes displayed by US courts in different scenarios: they do not oppose the political branches in all situations; rather, in certain areas, particularly those involving national security, they demonstrate a high degree of restraint and deference to political judgments. This ruling compels us to rethink the role of the US judicial system within the overall state structure: it is not always in an adversarial position but exhibits dynamic, adaptive characteristics across different fields and periods. This not only helps refresh our inherent cognitive understanding of the US judicial system but also reminds us to examine its multifaceted roles in various contexts from a more comprehensive and dynamic perspective. In today’s increasingly complex geopolitical environment, we should re-examine the domestic dynamics and international implications of the development of the US Constitution and judiciary. Whether it be Chinese enterprises going global or other interested parties, they all need to re-understand, in this new context, the limits of protection afforded by the US Constitution and courts to multinational corporations.
In a larger sense, the TikTok case also highlights the question of how multinational internet enterprises should respond to host-country risks during the transitional process of the global internet order. In particular, companies from non-US allied nations face not only traditional legal compliance risks but also political risks as internet governance undergoes deglobalization. To address political risks, TikTok previously achieved some success through legal litigation, but as internal US politics changed, this approach became increasingly ineffective. Whether multinational internet companies can adopt other measures to effectively counter political pressure in host countries, or whether they must withdraw from those markets, is an urgent conundrum requiring thought and resolution.
In conclusion, in today’s increasingly digitalized world, cyberspace and the tech sector have irrefutably become an important “battlefield” for international strategic competition. Both Chinese enterprises going global and relevant policymakers may need to appropriately adjust their expectations regarding US internal political and legal processes under the new technological environment and more complex geopolitical landscape. Changes in law and the judiciary are often microcosms and reflections of broader transformations. These broader shifts are intimately tied not only to the major recent pivot in US strategy (e.g., beginning to prioritize national sovereignty over globalization) but also to profound changes in the global internet governance system, such as the rise of digital sovereignty and the prevalence of data localization policies. Amidst profound changes unseen in a century, it seems we should pay more attention to whether a new global internet order is gradually forming, how it is forming, and in what visage it will present itself to the world. Perhaps many years from now, looking back at this history, the TikTok case will become a key event worth remembering, bearing witness to the profound transformation of the global internet order.
Notes:
[1] Liu Han, Thinking About Big Issues: Law is a Way of Thinking, Shanghai Jiao Tong University Press, 2020, pp. 84~91.
[2] [7] [9] TikTok Inc. v. Garland, 604 U.S. ___ (2025), 2~3; at 14; at 14;
[3] [4] [5] [6] TikTok Inc. v. Garland, No. 24-1113, 2024, (D.C. Cir. Dec. 6, 2024), at 33; at 19; at 20; at 33. [8] Turner I, 512 U. S., at 665 (opinion of Kennedy, J.).
[10] TikTok, Inc. v. Trump, No. 1:20-cv-02658 (CJN), 2020 U.S. Dist. LEXIS 123079, at 17 (D.D.C. July 7, 2020).
[11] Marland v. Trump, No. 1:20-cv-01878, 2020 U.S. Dist. LEXIS 216199, at 24 (D.D.C. Nov. 17, 2020).
[12] Presidential Decision Directive 63, 3 Pub. Papers 634 (May 22, 1998).
[13] John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115-232, 132 Stat. 1636 (2018).
[14] Foreign Investment Risk Review Modernization Act of 2018, Pub. L. No. 115-232, §§ 1701-1728, 132 Stat. 2173.
[15] Exec. Order No. 13,942, 85 Fed. Reg. 48,637 (Aug. 6, 2020).
[16] Exec. Order No. 14,110, 88 Fed. Reg. 74,257 (Oct. 30, 2023).
[17] Noah Feldman, Cool War: The United States, China, and the Future of Global Competition, Random House, 2013.
[18] Anupam Chander, “Trump v. TikTok,” Vanderbilt Journal of Transnational Law, Vol. 55, Issue 5, 2023, 1166~1167; Han Liu & Ji Li, “TikTok v. United States,” in Matthew Erie ed., A Textbook on Chinese Outbound Investment, Cambridge University Press, 2025.