Gorsuch in TikTok Opinion Calls for Action on ‘Secret Evidence’

US Supreme Court Justice Neil Gorsuch called on Congress or the judiciary’s committee responsible for drafting rules for federal courts to address the government’s use of classified evidence that’s shielded from litigants.

The call came Friday in TikTok v. Garland, in which the justices upheld a law effectively banning the social media site in the US unless its Chinese parent company, ByteDance Ltd, divests by Jan. 19.

During Jan. 10 arguments in the case, Gorsuch was concerned with the “secret evidence” the Biden administration put forth to justify the ban.

The administration is defending the law as a national security imperative, saying that Chinese control of TikTok will let a foreign adversary collect Americans’ data for espionage or blackmail purposes.

The evidence was submitted to the US Court of Appeals for the DC Circuit and the Supreme Court, but not with TikTok, which urged the courts not to allow such evidence.

Ultimately the unsigned opinion for the court declined to rely on it. In a footnote, it said the decision was based solely on the public record, “without reference to the classified evidence the Government filed below.” That’s the same approach the D.C. Circuit took in initially upholding the ban.

Gorsuch, during arguments, noted with surprise that Congress hadn’t addressed the issue given what he called “the increased appeals to secret evidence that the government has made in recent years.”

Gorsuch raised similar concerns in the court 2022 decision concerning potential US-run “black sites” abroad. There, he noted that the government invoked the “state secrets privilege” to withhold evidence from court proceedings 16 times between 1961 and 1980. “Yet it has done so at least 49 times between 2001 and 2021,” Gorsuch said.

In his concurring opinion in the TikTok case, Gorsuch specifically called for action. “Congress or even the Standing Committee on Rules of Practice and Procedure would profit from considering the question,” he said.

Such calls from jurists are generally considered by the relevant advisory committee.

The case is TikTok v. Garland, U.S., No. 24-656, opinion 1/17/25.