Gaming the System? How TikTok v. Garland Could Shape the Future of Tencent

by Katerina Fernandez, Associate Member, University of Cincinnati Law Review Vol. 93

I. Introduction

Digital platforms have become integral to global communication, entertainment, and commerce.[1] In recent years, the intersection of national security, free speech, and foreign-owned technology companies has become a focal point of legal and political debate.[2] The rapid rise of Chinese-owned platforms like TikTok and WeChat has prompted significant regulatory action, culminating in the codification of the Protecting Americans from Foreign Adversary Controlled Applications Act (“the Act”) in April 2024.[3] This legislation mandates that TikTok divest from its Chinese parent company, ByteDance, or face a nationwide ban.[4] The U.S. Supreme Court’s recent decision in TikTok Inc. v. Garland upheld the Act,[5] affirming the government’s authority to impose such restrictions while balancing First Amendment concerns.[6] However, the implications of this decision extend far beyond TikTok, as the Court’s application of intermediate scrutiny and its approval of a divestiture requirement as a less restrictive alternative to an outright ban have established a framework that could have far-reaching implications for other Chinese-owned companies operating in the U.S.[7] One such Chinese-owned company could be Tencent, a tech giant with substantial stakes in the gaming and social media industries.[8] Tencent’s vast influence in the U.S. gaming industry—a sector deeply embedded in American culture, particularly among younger users—has sparked concerns about data privacy, foreign influence, and the potential for covert content manipulation.[9] These concerns mirror those that drove the TikTok ban, suggesting that Tencent could be the next target of U.S. regulatory action.

This article explores the legal and policy implications of applying the framework established in Garland to Tencent. Part II will provide background on what led to the Garland decision and an explanation of the decision itself. Part II will further explain Tencent’s involvement in the gaming industry and the history of the WeChat ban. Part III will explore Garland’s potential application to Tencent, analyzing how the principles of intermediate scrutiny, content-neutral regulations, and divestiture requirements might shape future regulatory actions against Chinese-owned companies. It also examines the broader implications of such actions, including the impact on free speech, the global digital economy, and the gaming industry. By considering the cultural significance of platforms like League of Legends and Fortnite and the potential for international cooperation on data privacy and security, this article seeks to provide a comprehensive analysis of the challenges and opportunities that lie ahead in regulating foreign-owned technology companies operating in the United States. Part IV will conclude by contemplating how, as the U.S. government continues to grapple with the challenges posed by foreign-controlled technology platforms, the Garland decision represents a pivotal moment in the ongoing debate over balancing national security interests with the protection of free speech and economic innovation.

II. Background

Due to national security concerns, TikTok and Tencent are two major Chinese technology companies under scrutiny in the U.S.[10] TikTok, a social media platform owned by ByteDance, is widely popular for its short-form videos, while Tencent is a conglomerate with significant influence in the gaming industry, owning Riot Games and Supercell and holding major stakes in Epic Games.[11] Beyond gaming, Tencent also operates WeChat, a social media and messaging app that was the subject of a 2020 executive order banning its use in the U.S., though federal courts later blocked the ban.[12] Concerns over Chinese ownership and potential data security risks have led to various executive orders, legislative proposals, and legal battles to restrict or regulate these companies. The U.S. Department of Defense has also classified Tencent as a “Chinese Military Company,” highlighting the broader geopolitical tensions surrounding Chinese tech firms.[13] This section will examine these issues’ legal and policy implications, including key judicial decisions such as Garland.

A. TikTok v. Garland: A Precedent for Regulating Foreign-Owned Digital Platforms

The Supreme Court’s decision in TikTok v. Garland represents a pivotal moment in the intersection of national security concerns and First Amendment rights, particularly in the context of foreign-owned social media platforms.[14] The case arose from the Protecting Americans from Foreign Adversary Controlled Applications Act (“the Act”), a bipartisan law passed in April 2024, which effectively banned TikTok from operating in the United States unless its Chinese parent company, ByteDance, divested its ownership.[15] The law was enacted in response to concerns that the Chinese government could exploit TikTok to collect sensitive data on American users and manipulate content for propaganda.[16] TikTok and its users challenged the law, arguing that it violated their First Amendment rights by restricting access to a platform which served as a vital medium for expression and information sharing.[17]

The Court’s analysis centered on the appropriate level of scrutiny to apply to the law.[18] In First Amendment cases, laws that regulate speech based on its content are subject to strict scrutiny, requiring the government to demonstrate that the law is narrowly tailored to serve a compelling state interest.[19] However, the Court determined that the TikTok ban was “facially content-neutral,” meaning it was not motivated by a desire to suppress any particular viewpoint or message but rather by national security concerns related to foreign control of the platform.[20] As a result, the Court applied intermediate scrutiny, which requires the government to show that the law advances an important governmental interest and does “not burden substantially more speech than necessary to further that interest.”[21]

In this case, the Court found that the government’s interest in preventing China from accessing the personal data of 170 million American TikTok users was both important and well-supported.[22] The Court emphasized the vast amount of sensitive information TikTok collects, including user locations, contact lists, and private messages, which could be exploited for espionage or blackmail.[23] The Court also noted that ByteDance, TikTok’s parent company, is subject to Chinese laws requiring it to cooperate with the Chinese government’s intelligence efforts, further justifying the government’s concerns.[24] In balancing these national security interests against the First Amendment rights of TikTok users and creators, the Court concluded that the law’s restrictions were justified, as the government’s interest in protecting national security outweighed the incidental burden on free speech.[25]

Furthermore, a key aspect of the Court’s decision was its deference to Congress and the executive branch on national security matters.[26] The Court acknowledged that national security and foreign policy are areas where the judiciary traditionally affords significant deference to the political branches.[27] The Court cited the legislative record, which detailed years of bipartisan concern over TikTok’s data collection practices and its potential to be exploited by the Chinese government.[28] The Court also noted that Congress had conducted extensive hearings and investigations before passing the law and that the executive branch engaged in prolonged negotiations with ByteDance to address national security concerns before a ban.[29] The Court’s deference was particularly evident in its treatment of the government’s predictive judgments about the risks posed by TikTok.[30] While TikTok argued that there was no evidence China had used the platform for espionage or propaganda, the Court held that the government didn’t need to prove actual harm.[31] Instead, the Court deferred to Congress’s reasonable inference that China could exploit TikTok’s data collection capabilities in the future, given the platform’s scale and the Chinese government’s legal authority to access data held by Chinese companies.[32]

The Court in Garland also addressed the First Amendment rights of companies to engage in expressive association and exercise editorial discretion.[33] TikTok argued that the ban infringed on its right to curate and moderate content on its platform, which the Court recognized as a form of expressive activity.[34] However, the Court concluded that the government’s national security interests outweighed these First Amendment concerns, particularly given TikTok’s susceptibility to foreign control and the potential for data exploitation by the Chinese government.[35]

Finally, the Court also upheld the divestiture requirement as a less restrictive alternative to an outright ban.[36] The law allowed TikTok to continue operating in the United States if ByteDance sold its ownership to a non-Chinese entity, thereby severing its ties to a foreign adversary.[37] The Court found that this conditional ban was narrowly tailored to address the government’s national security concerns without unnecessarily burdening free speech.[38] The Court noted that the divestiture requirement was designed to ensure that TikTok’s U.S. operations would no longer be subject to Chinese control, including control over the platform’s recommendation algorithm and data-sharing practices.[39]

In approving the divestiture requirement, the Court rejected TikTok’s argument that less restrictive alternatives, such as data localization or enhanced cybersecurity measures, would suffice.[40] The Court held that these alternatives would not fully address the risk of Chinese government access to TikTok’s data, particularly given the complexity of the platform’s software and the difficulty of monitoring data flows.[41] The Court emphasized that the divestiture requirement was a proportionate response to the national security threat, allowing TikTok to continue operating while mitigating the risk of foreign interference.[42]

B. Tencent, WeChat, and the Expanding Scope of U.S. National Security Scrutiny

In August 2020, President Donald Trump issued an executive order banning transactions with the Chinese-owned messaging app WeChat, citing national security concerns.[43] The order, which was set to take effect 45 days after its issuance, accused WeChat of illicit data collection, claiming that the app “automatically captures vast swaths of information from its users.”[44] This executive order was part of a broader effort by the first Trump administration to curb the influence of Chinese technology companies in the United States, including a similar ban on TikTok.[45] The administration argued that these apps threatened national security due to their potential to share user data with the Chinese government.[46]

The WeChat ban immediately sparked significant legal and political concerns. WeChat users and companies reliant on the platform for communication and commerce filed lawsuits, arguing that the ban violated their First Amendment rights.[47] Plaintiffs contended that WeChat was a vital tool for communication, particularly for Chinese American communities, and that banning the app would effectively stifle free speech.[48] The litigation highlighted the tension between national security concerns and constitutional protections, as courts were asked to balance the government’s interest in safeguarding national security against the rights of individuals and businesses to communicate freely.[49] In response to these legal challenges, a federal court temporarily blocked the implementation of the WeChat ban, ruling that the plaintiffs had demonstrated a likelihood of success on their First Amendment claims.[50] The court found that the government had not provided sufficient evidence to justify the ban as a necessary measure to protect national security.[51] This judicial intervention underscored the high bar that the government must meet when restricting platforms that serve as critical channels for communication.

The WeChat litigation provides essential insights into the legal and political challenges that Tencent, WeChat’s parent company, might face in the event of a future ban. The U.S. government’s concerns about Chinese-owned companies extend beyond social media apps to include gaming and other digital platforms, particularly those that collect large amounts of user data.[52] The U.S. government’s criteria for designating companies as national security threats often revolve around their potential to share data with foreign governments, particularly China.[53] In 2025, the Department of Defense designated Tencent as a “Chinese Military Company,” alleging that the company had ties to the Chinese military.[54] Tencent disputed this designation, stating it was neither a military company nor a contributor to China’s defense industrial base.[55] However, this designation raised concerns about the extent to which Tencent’s operations in the U.S. could be scrutinized or restricted in the future.

III. Discussion

The Supreme Court’s decision in Garland represents a significant moment in the ongoing tension between national security and First Amendment rights.[56] It raises critical questions about the future of free expression in the digital age.[57] While the Court’s application of intermediate scrutiny and deference to Congress and the executive branch on national security matters may seem prudent in TikTok’s unique circumstances, the decision leaves the door open for broader governmental overreach. By upholding the divestiture requirement as a less restrictive alternative, the Court has effectively endorsed a framework that allows the government to impose significant restrictions on speech under the guise of national security, provided those restrictions are not explicitly content-based. This approach, while narrowly tailored in this case, could set a troubling precedent for future regulations targeting foreign-owned platforms or even domestic entities that pose similar risks.

The 2020 executive order banning WeChat and the subsequent litigation also highlight the complex interplay between national security, free speech, and the global operations of Chinese technology companies. The legal challenges to the WeChat ban underscore the U.S. government’s difficulties justifying restrictions on widely used communication platforms. As the U.S. continues to scrutinize Chinese-owned companies, the criteria used to designate these companies as national security threats—and the legal battles that ensue—will have significant implications for Tencent and other Chinese tech giants operating in the U.S. market.

A. The First Amendment in the Digital Age: What TikTok v. Garland Means for Platform Regulation

The Supreme Court’s decision in Garland has significant implications for the First Amendment, particularly in the context of content-neutral regulations, expressive association, and editorial discretion. These principles are relevant to TikTok and could apply to other foreign-owned platforms, such as those operated by Tencent. This section explores how the Court’s reasoning in Garland might apply to potential bans or restrictions on Tencent-owned platforms.

1. Surviving Intermediate Scrutiny

In Garland, the Court determined that the Act was a content-neutral law, thus only requiring the government to show that the law was advancing an important government interest—in this case, national security— and not burdening substantially more speech than necessary to achieve the interest.[58] If the U.S. government were to impose similar restrictions on Tencent-owned platforms, such as WeChat or its gaming platforms, the same content-neutral framework could apply. The unique characteristics of Tencent’s platforms—such as their scale, data collection practices, and susceptibility to foreign adversary control—would be critical in determining whether the regulation satisfies intermediate scrutiny.

If similar restrictions were passed, Tencent could argue that any such regulation is not truly content-neutral but a pretext for suppressing speech. Unlike TikTok, which primarily functions as a short-form video platform, Tencent’s services, including WeChat and its gaming ecosystem, encompass a broader range of functionalities such as messaging, financial transactions, and cloud computing. Additionally, while the U.S. government justified restrictions on TikTok based on national security concerns related to data privacy and foreign influence, such concerns may be weaker for Tencent’s gaming platforms, which do not primarily function as hubs for sensitive user data or political discourse. This diversity allows Tencent to demonstrate that its platforms are not solely content-driven but integral to global commerce and communication. Moreover, Tencent could challenge the national security justification as overly broad, emphasizing that its platforms operate with distinct structural and operational safeguards that mitigate risks differently from TikTok. Unlike TikTok, which has faced heightened scrutiny over its ties to ByteDance and alleged Chinese government influence, Tencent could showcase a longer history of international business operations with more established security measures. By demonstrating proactive engagement with regulators and implementing safeguards beyond what is legally required, Tencent could argue that a sweeping ban is neither necessary nor narrowly tailored, thus imposing an excessive burden on protected speech and commerce.

2. Expressive Association and Editorial Discretion

Tencent-owned platforms, such as WeChat or its gaming platforms, also engage in expressive association and editorial discretion. For example, Tencent’s gaming platforms curate content, moderate user interactions, and create unique gaming experiences, all considered forms of expressive activity.[59] If the U.S. government were to impose restrictions on these platforms, Tencent could argue that such measures infringe on its First Amendment rights to curate and moderate content, which is essential to maintaining its services’ integrity and user experience.

Tencent could further emphasize that its platforms are not merely conduits for user-generated content but are also spaces for creative expression and community building. For instance, Tencent’s gaming platforms host a wide range of user-generated content, from in-game mods to streaming content, which rely on the company’s editorial discretion to ensure a safe and enjoyable environment. By framing its role as a facilitator of expressive activity, Tencent could argue that platform restrictions would disproportionately burden its First Amendment rights without adequately addressing national security concerns.

Due to the key differences between gaming platforms and social media services, Tencent’s argument is also more likely to succeed, whereas TikTok’s did not. The Supreme Court recognized video games as a protected form of speech in Brown v. Entertainment Merchants Association,[60] strengthening Tencent’s claim that its gaming platforms are inherently expressive and engage in protected editorial discretion. Unlike TikTok, which primarily serves as a neutral host for user-generated content, Tencent’s gaming platforms actively create and shape user experiences to align more closely with traditional First Amendment protections for publishers and content creators.[61]  Given these distinctions, Tencent could argue that restrictions on its platforms pose a greater constitutional burden than those imposed on social media platforms like TikTok.

3. First Amendment Rights of Users and Content Creators

Similar concerns to those raised in Garland concerning content creation could arise in the context of Tencent-owned platforms.[62] For example, WeChat is widely used by Chinese American communities for communication, and Tencent’s gaming platforms host millions of U.S. users who create and share content.[63] A ban or restriction on these platforms would burden the First Amendment rights of users and content creators who rely on these platforms for expression and association. Tencent could argue that its platforms are vital in facilitating communication and community building, particularly for marginalized groups. For instance, WeChat is a critical communication tool for Chinese American communities, enabling them to stay connected with family and friends abroad. Similarly, Tencent’s gaming platforms allow users to express themselves creatively and build communities around shared interests. By highlighting its platforms’ unique role in fostering expression and association, Tencent could argue that any restrictions would disproportionately impact these communities.

Furthermore, Tencent could emphasize the economic and cultural contributions of its platforms. For example, Tencent’s gaming platforms support a thriving ecosystem of content creators, streamers, and esports professionals who rely on these platforms for their livelihoods. The economic activity of these individuals is protected under commercial speech, which is protected under the First Amendment.[64] Due to Tencent’s status as the largest video game vendor in the world, it could argue that any major ban or restriction on its platforms would significantly hinder its users’ protected commercial speech beyond the scope of intermediate scrutiny. Unlike TikTok, which faced skepticism due to its predominantly social media-based model, Tencent could leverage its extensive track record in gaming, enterprise software, and cloud services to present itself as an indispensable player in multiple industries. By demonstrating the broader societal benefits of its platforms, Tencent could argue that the government’s national security concerns do not outweigh the significant burdens that restrictions would impose on users and content creators.

B. The Effectiveness of Divestment: A National Security Solution or an Illusion?

The Supreme Court’s decision in Garland centered on the national security risks posed by foreign adversary control over a widely used social media platform. While the Court found that divestment was a justified measure to mitigate national security risks, the decision raises important questions about the effectiveness of divestment and alternative approaches to addressing these concerns. This section analyzes the national security concerns discussed in Garland and their potential application to Tencent, focusing on the effectiveness of divestment, alternative regulatory approaches, and the broader economic and geopolitical implications.

1. Effectiveness of Divestment in Mitigating National Security Risks

In Garland, the Supreme Court accepted the government’s argument that divestment was necessary to sever TikTok’s U.S. operations from ByteDance, mitigating the risk of Chinese government access to sensitive user data.[65] However, the effectiveness of divestment as a national security measure is not without controversy. Divestment may create only the illusion of security without fully addressing the underlying risks. For example, even if TikTok’s U.S. operations were sold to an American company, ByteDance could retain control over critical technologies, such as the platform’s proprietary algorithm and source code developed and maintained in China. Thus, divestment would not alleviate Congress’s national security concerns because the Chinese government could still exert influence over the platform, albeit indirectly.

Similar concerns arise regarding Tencent-owned platforms, such as WeChat and its gaming services. Tencent’s gaming platforms, for instance, rely on sophisticated algorithms and proprietary technologies that are integral to their operation.[66] Even if Tencent were to divest its U.S. gaming operations, it could retain control over these technologies, raising questions about whether divestment would mitigate national security risks. Moreover, Tencent’s extensive global reach and interconnected business operations make it difficult to sever ties entirely between its U.S. operations and its Chinese parent company. Therefore, divestment may not be a solution for addressing national security concerns related to Tencent.

2. Alternative Approaches to Addressing National Security Concerns

Given divestment’s limitations, alternative approaches to addressing national security concerns may be more effective and less disruptive. These include data localization requirements, enhanced cybersecurity measures, and stricter oversight of data access by foreign entities. Data localization, for example, would require Tencent to store U.S. user data on servers in the United States, reducing the risk of foreign government access.[67] Enhanced cybersecurity measures, such as regular audits and third-party oversight, could ensure that Tencent’s platforms comply with U.S. data privacy and security standards.

Tencent could argue that these alternative measures would address national security concerns more effectively without divestment. For instance, Tencent could highlight its existing data localization practices, which already store U.S. user data on domestic servers. Additionally, Tencent could propose enhanced cybersecurity protocols, such as encryption and multi-factor authentication, to safeguard user data. By adopting these measures, Tencent could demonstrate its commitment to protecting national security while avoiding economic and operational disruptions.

Another alternative to divestment is international cooperation on data privacy and security.[68] The United States could work with allied countries to establish common standards for regulating foreign-owned platforms, ensuring they adhere to rigorous data protection requirements regardless of ownership. This approach would address national security concerns and promote global interoperability and trust in digital platforms.[69] Tencent could advocate for international cooperation as a more balanced and sustainable solution to national security concerns. As a global company operating in multiple countries, Tencent is well-positioned to cooperate internationally to establish common data privacy and security standards. By aligning its practices with these standards, Tencent could mitigate the risk of foreign government access to user data while maintaining its global operations. This approach would also reduce the need for country-specific regulations, such as divestment requirements, which could fragment the global digital economy.

3. Economic and Geopolitical Implications of Divestment

Divestment requirements could have significant economic and geopolitical implications, particularly given Tencent’s extensive investments in the gaming industry and the broader tech ecosystem.[70] Forcing Tencent to divest its U.S. gaming operations could disrupt the industry, affect jobs, and impact the broader tech ecosystem. Moreover, divestment could trigger retaliatory measures from China, such as enforcing China’s Anti-Foreign Sanctions Law, which could impose legal and economic risks on U.S. companies operating in China.[71]

Tencent could also highlight the potential for divestment to undermine U.S. leadership in the global tech industry. By forcing foreign-owned companies to divest their U.S. operations, the United States risks alienating key players in the global digital economy and reducing its influence over international tech standards. Tencent could argue that a more collaborative approach, focused on enhancing data security and privacy, would better serve U.S. interests by maintaining its leadership in the global tech industry while addressing national security concerns.

The national security concerns addressed in Garland have essential implications for Tencent and other foreign-owned platforms. While divestment may appear to be a straightforward solution to mitigate national security risks, its effectiveness is questionable, particularly in the context of Tencent’s complex global operations. Alternative approaches like data localization, enhanced cybersecurity measures, and international cooperation may offer more effective and less disruptive solutions. Moreover, divestment’s economic and geopolitical implications highlight the need for a balanced approach that addresses national security concerns without undermining the global digital economy. As the United States continues to grapple with the challenges posed by foreign adversary-controlled platforms, the lessons from Garland will be critical in shaping future regulatory frameworks. Tencent’s proactive measures and commitment to data security and privacy provide a strong foundation for a more collaborative and practical approach to addressing national security concerns.

IV. Conclusion

The Supreme Court’s decision in TikTok v. Garland represents a turning point in how the U.S. government balances national security concerns with First Amendment protections in the digital age. By upholding the divestiture requirement as a less restrictive alternative to an outright ban, the Court has established a precedent that could have significant implications for other foreign-owned digital platforms, particularly Tencent. While the decision reinforces the government’s ability to regulate foreign-controlled applications that pose national security risks, it also raises concerns about the potential for overreach and the broader impact on free speech, economic interests, and global digital markets.

Tencent’s vast presence in the gaming and social media industries makes it a likely candidate for future regulatory scrutiny. The framework established in Garland suggests that a similar approach—focusing on divestment rather than outright prohibition—could be applied to Tencent’s U.S. operations. However, whether such measures would effectively mitigate security concerns remains an open question. Alternative approaches, such as data localization, enhanced cybersecurity measures, and international cooperation on data governance, may provide more balanced and sustainable solutions.

As the U.S. government continues to navigate the complex intersection of national security, free expression, and global technology markets, the Garland ruling will serve as a key reference point for future legal and policy decisions. The path forward requires careful consideration of the trade-offs between security, innovation, and the fundamental rights that define the digital public sphere. Whether the U.S. chooses to adopt a more aggressive stance toward Tencent and others or pursue alternative regulatory measures, the outcome will shape the future of digital platform governance and the broader landscape of tech relations between the U.S. and China.

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[1] See Jacobs Edo, The Impact of the Digital Age: Transforming Communication, Industries, and Opportunities, Medium (Oct. 8, 2023), https://medium.com/@JacobsEdo/the-impact-of-the-digital-age-transforming-communication-industries-and-opportunities-e590a541a913 [https://perma.cc/SGS4-E8R8].

[2] See Caitlin Vogus, Crunch Time for TikTok and Americans’ Freedom of Speech, Ctr. For Democracy & Tech. (March 22, 2023), https://cdt.org/insights/crunch-time-for-tiktok-and-americans-freedom-of-speech/ [https://perma.cc/4QT5-CXKD].

[3] 15 U.S.C. § 9901 (2024).

[4] Id.

[5] TikTok Inc. v. Garland, 145 S.Ct 57, 74 (2025).

[6] Id.

[7] Paul Tassi, After A TikTok Ban, Is Gaming Overlord Tencent The Next Target?, Forbes (Jan. 19, 2025), https://www.forbes.com/sites/paultassi/2025/01/19/after-a-tiktok-ban-could-gaming-overlord-tencent-be-targeted-next/ [https://perma.cc/Y8W6-HXQL].

[8] Id.

[9] Id.

[10] Id.

[11] Frannie Comstock, Tencent: Chinese Company, Britannica (Mar. 22, 2025), https://www.britannica.com/topic/Tencent [https://perma.cc/Z2V2-W9LG].

[12] Bobby Allyn, Federal Judge Blocks Trump Administration’s U.S. WeChat Ban, NPR (Sept. 20, 2020), https://www.npr.org/2020/09/20/914983610/federal-judge-blocks-trump-administrations-u-s-wechat-ban [https://perma.cc/V8JB-KAS2]; see also U.S. WeChat Users All. v. Trump, 488 F.Supp.3d 912, 930 (N.D. Cal. 2020).

[13] Christian C. Contardo & Kenneth J. Nunnenkamp, DOD’s Expanding List of Chinese Military Companies, Morgan Lewis (Jan. 22, 2025), https://www.morganlewis.com/pubs/2025/01/dods-expanding-list-of-chinese-military-companies [https://perma.cc/RDF8-T8EE].

[14] Addison Dunlap, The Supreme Court Upheld the US TikTok Ban. Now What?, NYU News (Jan. 22, 2025), https://www.nyu.edu/about/news-publications/news/2025/january/sprigman-tiktok-q—a.html [https://perma.cc/85XP-NL7P].

[15] Protecting Americans from Foreign Adversary Controlled Applications Act, Pub. L. No. 118-50, 138 Stat. 955 (2024).

[16] Natasha G. Kohne et al., Protecting Americans’ Data from Foreign Adversaries Act of 2024, Akin (June 21, 2024), https://www.akingump.com/en/insights/alerts/protecting-americans-data-from-foreign-adversaries-act-of-2024 [https://perma.cc/3R2G-E4GD].

[17] TikTok Inc. v. Garland, 145 S.Ct. 57, 66 (2025).

[18] Id. at 65.

[19] Id. at 68.

[20] Id. at 67.

[21] Id.

[22] Id.

[23] Id. at 69.

[24] Id. at 63.

[25] Id. at 69.

[26] Id. at 70.

[27] Id.

[28] Id.

[29] Id. at 69.

[30] Id. at 70.

[31] Id.

[32] Id.

[33] Id. at 67.

[34] Id.

[35] Id. at 68-69.

[36] Id. at 71.

[37] See Protecting Americans from Foreign Adversary Controlled Applications Act, Pub. L. No. 118-50, 138 Stat. 955 (2024).

[38] See TikTok v. Garland, 145 S.Ct. 57, 70 (2025).

[39] Id. at 63.

[40] Id. at 70.

[41] Id.

[42] Id.

[43] See Exec. Order No. 13943, 85 Fed. Reg. 48641 (Aug. 11, 2020).

[44] Id.

[45] See Ana Swanson et al., Trump Administration to Ban TikTok and WeChat From U.S. App Stores, N.Y. Times (Sept. 18, 2020), https://www.nytimes.com/2020/09/18/business/trump-tik-tok-wechat-ban.html# [https://perma.cc/PS2X-CQQZ].

[46] Id.

[47] U.S. WeChat Users All. v. Trump, 488 F. Supp. 3d 912, 916 (N.D. Cal. 2020).

[48] Id. at 917.

[49] See Id. at 927.

[50] Id. at 930.

[51] See Id. at 927.

[52] Peter Harrell, Managing the Risks of China’s Access to U.S. Data and Control of Software and Connected Technology, Carnegie Endowment for Int’l Peace (Jan. 30, 2025), https://carnegieendowment.org/research/2025/01/managing-the-risks-of-chinas-access-to-us-data-and-control-of-software-and-connected-technology?lang=en [https://perma.cc/2UBY-R943].

[53] Id.

[54] Peter Hoskins, US designates Tencent a Chinese military company, BBC (Jan. 7, 2025), https://www.bbc.com/news/articles/c9q78wn9g8zo [https://perma.cc/UHP5-8WGK].

[55] Id.

[56] Jenna Leventoff & Patrick Toomey, ACLU Slams Supreme Court TikTok Ruling, Am. C. L. Union (Jan. 17, 2025), https://www.aclu.org/press-releases/aclu-slams-supreme-court-tiktok-ruling [https://perma.cc/W6XQ-C3EQ].

[57] Id.

[58] TikTok v. Garland, 145 S.Ct. 57, 72.

[59] Kristen McCallion, The First Amendment Again Protects Video Games as Expressive Works, Fish & Richardson (Jan. 12, 2015), https://www.fr.com/insights/thought-leadership/blogs/the-first-amendment-again-protects-video-games-as-expressive-works/ [https://perma.cc/LRB5-6WS2].

[60]  Brown v. Ent. Merch. Ass’n, 564 U.S. 786, 790 (2011). 

[61] First Amendment, Entertainment Software Association, https://www.theesa.com/issues/first-amendment/ (last visited Feb. 26, 2025) [https://perma.cc/V6HD-BGAS]; see also Jess Sawyer, The First Amendment and Its Protections for Writers and Publishers, Originality.ai (Aug. 8, 2024), https://originality.ai/blog/first-amendment-protections-writers-publishers [https://perma.cc/NH6V-EH2R].

[62] Vivin Qiang, WeChat and the impact on Asian Americans and communities of color, Medium (Sept. 18, 2020), https://medium.com/advancing-justice-aajc/wechat-and-the-impact-on-asian-americans-and-communities-of-color-5ac5d1bca1fc [https://perma.cc/K2DS-SENR]; see also Zoe Kleinman, What is Tencent?, BBC (Aug. 7, 2020), https://www.bbc.com/news/technology-53696743 [https://perma.cc/VP5V-8YUC].

[63] Qiang, supra note 62; Kleinman, supra note 62.

[64] Commercial Speech, Legal Information Institute (Aug. 2022), https://www.law.cornell.edu/wex/commercial_speech [https://perma.cc/H62P-HQ96].

[65] TikTok v. Garland, 145 S.Ct. 57, 70 (2025).

[66] Game Technologies that are Driving Real-World Innovations, Tencent (June 29, 2022), https://www.tencent.com/en-us/articles/2201371.html [https://perma.cc/Z6J9-ZLAK].

[67] Erol Yayboke et al., The Real National Security Concerns over Data Localization, Ctr. For Strategic & Int’l Stud. (July 23, 2021), https://www.csis.org/analysis/real-national-security-concerns-over-data-localization [https://perma.cc/5VD2-3985].

[68] International Cooperation, European Union, https://www.edps.europa.eu/data-protection/our-work/international-cooperation_en (last visited Feb. 19, 2025) [https://perma.cc/C5ZX-QU76].

[69] Id.

[70] Jiabao Zhu, Analysis of the Investment Value of Tencent’s Game Industry — Honor of Kings as an Example, 40 Highlights Bus., Econ., & Mgmt. 542 (2024).

[71] Xing Jiaying and Li Mingjiang, The Potential Chinese Responses to a U.S. Ban on TikTok, Carnegie Endowment for int’l peace (Apr. 11, 2024), https://carnegieendowment.org/posts/2024/04/the-potential-chinese-responses-to-a-us-ban-on-tiktok?lang=en [https://perma.cc/5XV5-PV87].

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Cover Photo by Tariq Mahmud Naim on Unsplash.