The U.S. Supreme Court’s decision on Jan. 17 upholding the federal law banning TikTok continues a long history of judicial deference to claims of national security. The ruling upholds a federal statute that bans a medium of communication that is used by more than 170 million people in the United States. The speech of all who generate content for it and all who receive it is restricted by this law. It is difficult to think of any law in American history that restricted so much speech for so many people.

TikTok stopped operating in the United States for a brief time after the court’s decision. Upon taking office, President Donald Trump issued an executive order delaying the TikTok ban from going into effect for 75 days. It is questionable whether he has the authority to do this under the federal statute. But if no court enjoins his order, TikTok at least has a temporary reprieve. The ultimate fate of TikTok in this United States remains uncertain.

Factual background

On April 24, 2024, President Joe Biden signed the Protecting Americans from Foreign Adversary Controlled Applications Act into law. The act identifies the People’s Republic of China and three other countries as foreign adversaries of the United States and prohibits the distribution or maintenance of “foreign adversary controlled applications.” The law prohibited TikTok in the United States as of Jan. 19, unless its owner, ByteDance, had sold it by then.

Under the law, the president may grant a 90-day extension if there is significant progress being made toward a sale of TikTok. ByteDance has given no indication that it is interested in a sale, so it is difficult to see President Trump’s action fitting within this statutory authority.

On Dec. 6, 2024, the U.S. Court of Appeals for the District of Columbia Circuit upheld the federal law outlawing TikTok. The judges acknowledged the impact of the law on freedom of speech, but they accepted the government’s argument that national security concerns justified the ban.

First, the court said China, through TikTok, could gather information about those in the United States. Second, the court said China could attempt to use TikTok to influence attitudes, including about politics, in this country.

Supreme Court decision

The Supreme Court granted certiorari and scheduled oral argument for Jan. 10. A week later, the court unanimously affirmed the D.C. Circuit in a per curiam opinion.

At the outset, the court said there was the question of whether “heightened review” was appropriate when there was a regulation of nonexpressive activity (ownership of a platform) that disproportionately burdens those engaged in expressive activity (those who post on TikTok and receive information there). The court did not resolve that issue, instead declaring, “We assume without deciding that the challenged provisions fall within this category and are subject to First Amendment scrutiny.”

The court began by reciting the familiar principle that content-based regulations must meet strict scrutiny, while content neutral laws only need meet intermediate scrutiny. Under strict scrutiny, a law must be necessary to achieve a compelling purpose, while under intermediate scrutiny, a law only need be substantially related to an important purpose. A law is deemed content-based if either it restricts speech based on its topic or its viewpoint.

The court said that “As applied to petitioners, the challenged provisions are facially content neutral and are justified by a content-neutral rationale.” The court explained that the federal statute was content- neutral because it prohibited all speech over TikTok in the United States, whatever its topic and whatever its viewpoint.

The court identified the government’s purpose as preventing China, a foreign adversary, from gathering large amounts of information on Americans using the platform. And it expressly declared that this was a sufficiently important interest to meet intermediate scrutiny: “The act’s prohibitions and divestiture requirement are designed to prevent China—a designated foreign adversary—from leveraging its control over ByteDance Ltd. to capture the personal data of U. S. TikTok users. This objective qualifies as an important Government interest under intermediate scrutiny.”

The court said China could gather vast amounts of information about users of TikTok that could include enabling “China to track the locations of federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage.” The court stressed that the case arose in the context of “national security and foreign policy,” and therefore concluded that “we must accord substantial deference to the predictive judgments of Congress.”

Notably, the court did not echo the D.C. Circuit’s conclusion that the TikTok ban was justified because China might use it to influence attitudes in the United States. The premise of the First Amendment is that more speech is inherently better, regardless of its source. Restricting speech because it might change minds is antithetical to the First Amendment. Even during the height of the Cold War, the United States allowed the Russian newspaper Pravda to be sold in this country.

The challengers argued that the purpose of the federal law was to prevent TikTok to be used to convey particular views. The court acknowledged that no prior cases had determined “the appropriate level of First Amendment scrutiny for an act of Congress justified on both content-neutral and content-based grounds.”

The court said it did not need to decide that issue, but then effectively did by declaring: “The record before us adequately supports the conclusion that Congress would have passed the challenged provisions based on the data collection justification alone.” This is an important clarification of First Amendment law: If a government action is justified by both content-based and content-neutral rationales, it will be treated as content-neutral so long as the court is convinced that the law would have been adopted anyway based on the content-neutral rationale.

Justice Sonia Sotomayor concurred in part and concurred in the judgment. She agreed with the decision but said the court should have held, not just assumed, that the ban on TikTok is expressive activity. She said, “TikTok engages in expressive activity by ‘compiling and curating’ material on its platform.”

Justice Neil Gorsuch concurred in the judgment. He questioned whether the law was actually content-neutral but said it was constitutional under any level of scrutiny. He wrote: “I am persuaded that the law before us seeks to serve a compelling interest: preventing a foreign country, designated by Congress and the president as an adversary of our oation, from harvesting vast troves of personal information about tens of millions of Americans.”

Analysis

No one in the litigation disputes that TikTok can gain a great deal of information about users of its platform. Nor was it disputed that this information potentially could be obtained by China.

What is missing in the court’s analysis is a discussion of what information China can obtain and how that information can be used to damage national security. It is certainly true that every app allows those administering it to gather information about users. But knowing how many people are watching a dance video hardly seems a basis for endangering the country. Because the federal law is a very significant restriction on speech there must be a real, proven danger, not conjecture.

None of the briefs elaborates this, either. Nor is it the case that the court relied on secret information provided by the government to justify the law. Justice Gorsuch observed: “I am pleased that the court declines to consider the classified evidence the government has submitted to us but shielded from petitioners and their counsel.”

The court should have explained in much greater detail what information China could gain from TikTok users and how China possessing this information could harm the United States.

Ultimately then, what explains the court’s conclusion is not a proven likely harm to national security from TikTok. Rather, it is the court giving deference to the government’s claim that TikTok is a threat to national security. There have been many cases throughout American history where the court has professed such deference. But the crucial question is whether such deference is appropriate when it involves a major restriction on the exercise of a fundamental right.

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Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of many books, including No Democracy Lasts Forever: How the Constitution Threatens the United States and A Court Divided: October Term 2023 (2024).

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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Cybersecurity

Judge gives final OK to $8M settlement in Orrick data breach

By Debra Cassens Weiss

November 12, 2024, 1:51 pm CST

A federal judge in California approved an $8 million settlement Friday in consolidated cases brought against Orrick, Herrington & Sutcliffe over a 2023 data breach that may have compromised the personal information of more than 638,000 people.

U.S. District Judge Susan Illston of the Northern District of California said after a hearing Friday she would give final approval to the settlement but was holding off on a $2 million request for attorney fees to be paid out of the settlement money.

Law360, Bloomberg Law and Law.com have coverage.

Orrick initially reported that the data breach affected nearly 153,000 people but later said the number of people affected was higher. More than 638,000 people received notices that personally identifiable information may have been obtained, according to an Oct. 4 motion for final settlement approval.

The hack exposed names, home addresses, birth dates and Social Security numbers, plaintiffs said.

The settlement allows class members to receive an “alternative cash payment” of $75 without supplying documentation, according to the Oct. 4 motion.

Those who submit documentation can seek up to $2,500 for out-of-pocket expenses, up to $7,500 for extraordinary losses, up to $125 for time spent (amounting to $25 per hour), and, for Californians, an extra $150 for privacy act claims, the motion says.

Orrick agreed to the settlement but denied liability and did not concede the factual basis for claims.

Illston’s approval of the Orrick settlement follows an agreement by Florida midsize law firm Gunster to pay $8.5 million to plaintiffs suing over a 2022 data breach, according to Law.com.

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Client’s employees seek approval of data breach settlement after BigLaw firm hack

By Debra Cassens Weiss

October 11, 2024, 9:20 am CDT

Bryan Cave Leighton Paisner and its client Mondelez Global have agreed to pay $750,000 to settle claims by Mondelez employees whose private information may have been compromised in a hack of the law firm’s network.

A class of about 53,000 current and former Mondelez employees asked U.S. District Judge Jorge L. Alonso to preliminarily approve the settlement in an Oct. 4 memorandum of law.

Reuters and Law360 have coverage.

Attorney fees of up to $250,000 for class counsel would come from the settlement fund. Individual plaintiffs could seek money for time spent responding to the breach, reimbursement of up to $7,000 for out-of-pocket losses and free credit monitoring. Class members could elect instead to seek a pro rata cash payment from the settlement fund.

Bryan Cave and Mondelez have both implemented security improvements to protect against another security breach, the plaintiffs said in the request.

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Partners

Some top partners in BigLaw will bill nearly $3,000 per hour next year, data says

By Debra Cassens Weiss

September 26, 2024, 12:07 pm CDT

Billing rates for some of the nation’s highest-grossing law firms are expected to continue an upward climb next year.

Some senior partners are expected to bill nearly $3,000 per hour, and a few might top that amount, Law.com reports in a story citing data by Valeo Partners, which analyzes public disclosure documents to discern upcoming rate changes.

Currently, nine firms have standard hourly rates for senior partners that range from about $2,400 to $2,875, according to Chuck Chandler, the CEO of Valeo Partners. Seventeen others will be in that range by 2025, he told Law.com.

Standard billing rates for the nation’s 50 top-grossing firms, however, are expected to be $2,100 for senior partners and $1,900 for other partners.

Valeo Partners didn’t disclose which firms are charging the highest rates for senior partners. Bankruptcy filings reveal, however, that some top partners billed $2,720 per hour this year at Wilson Sonsini Goodrich & Rosati and billed $2,590 per hour last year at McDermott Will & Emery, according to Law.com.

Bankruptcy filings from 2024 reveal that some senior associates billed $1,575 per hour at Sullivan & Cromwell and $1,560 per hour at Paul, Weiss, Rifkind, Wharton & Garrison.

Hat tip to Above the Law.

The Judiciary today released its Annual Report providing detailed information about mission critical initiatives that advanced over the course of 2023, including efforts to enhance the court system’s physical and information technology security and modernize its IT systems.

“Many of these initiatives will go far in shaping the Judiciary’s future,” wrote Judge Robert J. Conrad, Jr., the incoming Director of the Administrative Office of the U.S. Courts (AO). “I look forward to working with the judges, court executives, and staff to deliver excellence in the pursuit of justice for all.”

Conrad took over the leadership of the AO from Judge Roslynn R. Mauskopf on March 1, 2024, following Mauskopf’s retirement.

The report is presented in 13 chapters and describes the work of the AO and the courts in 2023. In addition to major improvements to IT systems, the Judiciary continued vital work to foster an exemplary workforce across the courts and it made important strides in implementing the Vulnerability Management Program as judges and their families continued to cope with external threats.

For example, the report details the operations of the AO’s new Judiciary Security Operations Branch, which assists judges, their families, and court staff with physical security and emergency preparedness. The branch coordinates closely with the U.S. Marshals Service, the Federal Protective Service, and the General Services Administration (GSA), which owns the nation’s federal courthouses, to address deficiencies in local court security measures.

As in past years, the Judiciary also released an accompanying Judicial Business of the United States report, which provides statistical tables about federal caseloads by circuit, district, and offense, among other topics. It compares data for the fiscal year ending Sept. 30, 2023, with data for prior years.

The report shows that total filings in the U.S. district courts rose 18 percent, to 405,878. Civil case filings increased 24 percent, to 339,731, while criminal defendant filings decreased 3 percent, to 66,147. In the regional courts of appeals, filings dropped 4 percent to 39,987. Bankruptcy court filings went up 13 percent to 433,658 as 85 of the 90 bankruptcy courts received more petitions.

The two reports are required by statute and are provided to Congress, the executive branch, the public, and the Judicial Conference of the United States, the federal courts’ policy-making body.

Fulton County District Attorney Fani Willis has asked a judge to ignore a recent court filing purporting to show a series of cellphone “interactions” between herself and the special prosecutor overseeing the racketeering (RICO) case against former President Donald Trump.

Early on Friday, Trump attorney Steven Sadow filed a supplemental exhibit allegedly based on an analysis of cellphone records indicating that special prosecutor Nathan Wade was in physical proximity to Willis before the time in 2021 when he was hired to work on the case — well before Willis and Wade have testified their relationship began.

Later on Friday, Willis sought to rubbish that filing as in violation of the court’s standing order on how evidence will be admitted in the case, the Georgia rules of evidence, and U.S. Supreme Court precedent.

“The Court’s Standing Case Management Order for Criminal cases was specifically intended to prevent parties from ambushing opposing counsel with purported expert evidence without allowing opposing counsel a meaningful opportunity to review the evidence, review the purported expert’s report and qualifications, and obtain its own expert in rebuttal,” the state’s objection reads. “The Court cannot now allow Defendant Trump to bypass this protective procedure when, in other cases, it has excluded expert evidence for a party’s failure to follow the Standing Case Management Order for Criminal Cases.”

In the Trump filing, investigator Charles Mittelstadt argues that AT&T records “revealed over 2000 voice calls” and “just under 12,000 interactions” exchanged by Wade and Willis over 11 months in 2021.

The investigator hired by Trump’s defense attorney also claims the data shows “specialized location data” for Wade’s cellphone number which puts him near Willis’ address on two days — during the early morning hours — in September and November 2021.

On Nov. 1, 2021, Wade was hired to work the RICO case. Both Willis and Wade, however, have testified (and averred in court documents) that their relationship did not become romantic until 2022.

Defense attorneys led by those representing co-defendant Michael Roman, a former Trump 2020 staffer, have alleged that Willis appointed Wade and then reaped something of a financial windfall in the form of various destination vacations, gift-like dinners and excursions during those trips, and other purchases. The prosecutors, conversely, say they more or less split their travel expenses equally.

There is a very scant — admittedly almost nonexistent — paper trail to substantiate the state’s claims that Willis reimbursed Wade. But, the basic facts of the relationship and when it began are also key to the judge’s ultimate determination over whether or not the DA, along with her entire office and prosecutorial team, will be tossed from the case.

More Law&Crime coverage: The Trump Docket: Jack Smith and Mar-a-Lago judge set for major showdown over protecting witnesses in documents case

“Mittelstadt, the author of Exhibit 38, is available to testify at the Court’s convenience,” the Trump filing reads — an attempt to piggyback on recent hearings over the Wade-Willis relationship.

The district attorney’s office, in their objection, disputes what Mittelstadt suggests: that Wade was calling on Willis late at night.

A bolded and underlined section in the latest filing reads:

The records do not prove, in any way, the content of the communications between Special Prosecutor Wade and District Attorney Willis; they do not prove that Special Prosecutor Wade was ever at any particular location or address; they do not prove that Special Prosecutor Wade and District Attorney Willis were ever in the same place during any of the times listed in Supplemental Exhibit 38; and, in fact, on multiple relevant dates and times, evidence clearly demonstrates that District Attorney Willis was elsewhere, including at work at the Fulton County District Attorney’s Office AND VISTING [sic] THE THREE CRIME SCENES WHERE A MASS MURDER MOTIVATED BY RACE AND GENDER BIAS HAD TAKEN PLACE.

Willis has previously called the effort to remove her from the case “absurd” and said that it reflects a “basic misunderstanding” of “rudimentary” rules. Still, Fulton County Superior Court Judge Scott McAfee has said the issues raised by the defense are serious and could warrant disqualification.

The state’s late Friday salvo largely sticks to the evidentiary issues — arguing Trump’s filing cannot satisfy numerous obligations under the court’s, the state’s, and the constitution’s procedural rules for the admission of evidence. Willis argues the judge should not consider the Mittelstadt data when ruling on the motion to disqualify.

Tucked into the tail-end of the state’s objection is also a quick bit of musing about where the Wade cellphone data came from.

“Moreover, the State questions whether Defendant Trump legally obtained cell site location information, which is generally only obtainable after a finding of probable cause and issuance of a search warrant,” the district attorney’s office writes.

 

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