미국의 틱톡(TikTok) 금지법 판결에 대한 공법적 소고(小考) : 틱톡 판결의 심사기준 논리와 한국적 비례성 심사에 시사점

초록

This study aims to analyze the judicial conflict between freedom of expression and national security through the “Protecting Americans from Foreign Adversary Controlled Applications Act” (the TikTok Ban Act). While the five-year ownership dispute reached a resolution in January 2026, the underlying legal controversies present ongoing constitutional challenges. In TikTok v. Garland, the U.S. judiciary upheld the Act's constitutionality by classifying it as a content-neutral regulation. The court reasoned that the Act targets “non-expressive elements”—specifically governance structures and data collection practices—rather than communicative content. Consequently, applying intermediate scrutiny, the court recognized a substantial governmental interest in preventing foreign adversaries from accessing sensitive personal data. Furthermore, the judiciary exhibited judicial minimalism by deferring to the legislature's “predictive judgment” in national security and foreign policy. However, this research critically examines the structural rigidity of this categorical approach and the potential for the Act to infringe upon the separation of powers as an “individual statute”. From a Korean perspective, domestic courts maintain stricter control over administrative discretion through the principle of proportionality. The Korean Constitutional Court applies rigorous scrutiny to significant fundamental rights restrictions, requiring the legislature to prove the “least restrictive means” for drastic measures like platform closures. Ultimately, the TikTok Ban Act underscores the need for a substantive rule of law to ensure national security does not evade judicial oversight. In the era of digital sovereignty, institutional safeguards must be established to protect defensive rights and prevent policy decisions from falling into judicial blind spots.

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