Author: achakrabarti

Introduction

On January 20, 2025, President Trump took office in the White House and began his second administration. One of the “hot” issues is the TikTok ban[1]. In the last administration, President Trump saw this social media having 170 million American users as hostile, but now it is assumed that he changed “his mind.” Now, TikTok and other popular Chinese apps are centered in a new Cold War whose battle field is speech platforms.[2]

This article briefly reviews the history of the TikTok ban and the recent impactful case of TikTok Inc. v. Garland—the First Amendment right of SNS users v. the Government’s national security interest—, analyzing the past Supreme Court’s decisions that balanced these competing interests. Then, examine the international context that will come next.

I. Brief History of TikTok ban

(1) Former Trump Administration

On August 6, 2020, Trump signed the executive order to ban transactions with ByteDance, owner of TikTok in the U.S. This would be effective in 45 days, on Sept. 20, 2020.[3] What led Trump to ban TikTok might be his desire to be reelected: his reelection campaign is driven by China-bashing to make China a scapegoat for complicated issues from COVID-19 to American job loss.[4]

In the order, Trump said Chinese apps threatened “the national security, foreign policy, and economy of the United States,” citing the potential for the Chinese Communist Party to access “Americans’ personal and proprietary information.”[5]

To avoid the forced sale of the US part of the business, ByteDance approached Microsoft as a possible partner and later chose Oracle as a “trusted technology provider.”[6] Under the corporation with Oracle, ByteDance would be able to keep TikTok’s algorithm and store user data in the U.S., but that didn’t happen.[7]

(2) Biden Administration

Biden’s executive order revoked Trump’s two orders and asked the Secretary of Commerce to evaluate the risks caused by China-based apps and address “any unacceptable or undue risks consistent with overall national security”.[8] Like Trump’s order, Biden’s order also acknowledged that these Chinese apps can access American users’ information.[9]

On March 23, 2023, the Congress hearing inviting Shou Zi Chew, the CEO of TikTok, was held in the Committee on Energy and Commerce. In her opening Statement, Chair Cathy McMorris Rodgers (R-WA) criticized TikTok as “TikTok surveils us all and the Chinese Communist Party (CCP) is able to use this [collected data of American users] as a tool to manipulate America” and “TikTok doesn’t share America’s value.” She called for the ban on TikTok and preparation for “the next technological tool or weapon China will use for its own strategic gain.”[10] In its hearing memo, the strong connection between TikTok and CCP is addressed; though TikTok executives denied that it shares U.S. user data with the CCP, CCP actually passed laws that require all Chinese tech companies, including ByteDance, to allow CCP to access user data.[11] ByteDance also stated that any sale would need approval from Chinese Authorities.[12] Note that the Chinese government is a “golden” shareholder of ByteDance and has veto powers in the company.[13]

In April 2024, Biden signed the bill of the Protecting Americans from Foreign Adversary Controlled Applications Act, the so-called “TikTok ban,” that gave ByteDance 270 days, until January 19, 2025, to sell TikTok; otherwise, TikTok would be kicked out from the U.S. app stores, prohibited from any internet support, and restricted new app downloads.[14] The Act prohibits any entity from providing services to “distribute, maintain, or update” a “foreign adversary controlled application” in the United States and also prohibits any connection between ByteDance and TikTok after the sale.

The unique feature of TikTok is its recommendation algorithm:[15] unlike other SNS, TikTok’s algorithm recommends videos based on a user’s past engagement and personalized data, which allows TikTok to pull content not only from a user’s network but from the global pool.[16] U.S. officials warn TikTok’s algorithm is vulnerable to “manipulation by Chinese authorities, who can use it to shape content for propaganda purposes.”[17] While the bill asks TikTok to be separated from ByteDance, this separation is challenging because its algorithm is owned by ByteDance and maintained by Chinese engineers.[18] In response to the Act, TikTok began legal action against the Act, stating the law that censors freedom of speech and would devastate 170 million U.S. users is “unconstitutional.”[19]

However, the result of November changed the pathway to the TikTok ban. Biden left the implementation of the law to the next President, Trump.[20] In Congress, “saving TikTok” has become a partisan matter: Senate Democratic Leader Chuck Schumer revealed he persuaded Biden to extend the deadline to ban TikTok to ensure more time for AmericanTikTok users who live on their content revenues.[21]

(3) Present Trump Administration

The fact that the CEO of TikTok and other social networking heroes were at Trump’s inauguration was not just a coincidence.[22] TikTok was banned on January 19, 2025, and the next day, it seemed as if it came back to life. President Trump issued an executive order on January 20 to pause the ban required by the Act for 75 days.[23] In his “new” order—completely “shifted” from that in his former administration—Trump would “pursue a resolution that protects national security while saving a platform used by 170 million Americans” in the name of the President’s constitutional responsibility for the national security.[24]

What brought such a dramatic shift to Trump? One reason might be that winning the election has reaffirmed his belief in the usefulness of SNS as TikTok enabled his team to connect with young voters, which contributed to his victory.[25] The second reason would be that the SNS giants enthusiastically donated to Trump: Jeff Yass, one of the world’s 100 richest men and a TikTok investor hedged funds to Trump.[26] Elon Musk, X owner, has spent $200 for Trump’s campaign and got the privilege to lead a new “Department of Government Efficiency.”[27] Meta CEO Mark Zuckerberg updated his platforms’ policies to loose rules against hate speech to be more “Trump-friendly.”[28]

President’s “personal” motivation to pause the TikTok ban confused the tech industry; to follow the Act that passed Congress or to ignore it? Amazon Web Service, Apple, and Google followed the law by stopping providing its direct service to TikTok and deleting TikTok on their app stores while Oracle, Akamai, and Fastly continued their services to TikTok.[29] This division is likely to come from two different types of fear: the risk of being theoretically liable for up to $850 billion or the risk of being resistant to the President’s will.[30] The situation surrounding the ban on TikTok is highly fluctuating.

II. TikTok Inc. v. Garland

(1) Trump’s Amicus Brief

Before the Supreme Court’s decision, Trump filed an amicus brief to the Court in December 2024. In his brief, though Trump took no position on the merits of the dispute, he asked the Court to postpone the Act’s effective date so that his next Administration can resolve a nationwide shutdown of TikTok and national security concerns and the Court can obviate the need to decide “extremely difficult questions on the current, highly expedited schedule.”[31] Trump completely changed his attitude toward TikTok from when his executive order was issued, stating he evaluated “TikTok’s importance as a unique medium for freedom of expression” and called TikTok a constitutional forum where “the First Amendment’s ‘constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.’”[32] Trump posed a concern that the First Amendment right of 170 million Americans on TikTok would suffer because the ban, based largely on the government’s concerns about disfavored speech on the platform, might be a “dangerous global precedent by exercising the extraordinary power to shut down” an SNS.[33] He warned that the Court “should be deeply concerned about setting a precedent that could create a slippery slope toward global government censorship of social-media speech” with the most extreme care.[34]

(2) Case Brief

Petitioners are ByteDance Ltd. and TikTok Inc. with two sets of TikTok users, arguing the Act’s TikTok-specific prohibitions and the divestiture requirement impose a disproportionate burden on such as content moderation, content generation, access to a distinct medium for expression, thus violating the First Amendment.

While the Court admitted that the Act is different from the normal regulations of non-expressive activity in many ways—especially, the Act focuses on a foreign adversary government—the Court assumed without deciding that the Act was subject to First Amendment scrutiny.[35] Then, the Court concluded that the Act is content neutral because it neither “target particular speech based upon its content,” nor imposes “a ‘restriction, penalty, or burden’ by reason of content on TikTok[36]. The Court took the Government’s justification that the aim of the Act is “preventing China from collecting vast amounts of sensitive data” into account, concluding it is content neutral as the justification does not relate to the content.[37]

Roughly speaking, content-neutral regulations are examined by the intermediate scrutiny standard.[38] It applies to this case too; the Court clearly concluded that the Act does not trigger strict scrutiny. The Court admitted that if a regulation discriminates some speakers from others among media, and if the legislator’s speaker preference reflects a content preference, it presents “serious First Amendment concerns.”[39] However, the Court concluded that the purpose of the Act doesn’t include “a subtle means of exercising a content preference” because of its special characteristics focusing on the foreign adversary’s ability, which justifies different treatment on TikTok, so did deny the Court petitioner’s request for strict scrutiny and state no more than intermediate scrutiny is enough.[40]

Then, the Court evaluated the Act’s prohibitions and divestiture requirement to prevent the Chinese government’s capturing the American’s personal data through ByteDance “qualifies as an important Government interest under intermediate scrutiny” because the Act does not burden “substantially more speech than necessary to further that interest.”[41] The Court focused on the ban addressing delicate “national security and foreign policy concerns” and thus afforded “the Government’s ‘informed judgment’ substantial respect. A regulation can satisfy the intermediate scrutiny standard “‘so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation’ and does not ‘burden substantially more speech than is necessary’ to further that interest,” and the Act’s provisions clearly serve to the Government’s interests “in a direct and effective way” so satisfies the intermediate scrutiny.[42]

(3) Analysis: How has the Supreme Court assessed national security interests so far?

The Court’s decision to hold that the Act does not violate its users’ First Amendment rights surprised many people. First Amendment experts expected that the Act could be shot down by the courts given longstanding Supreme Court precedent protecting First Amendment rights; they assumed the Act would infringe on the right.[43] The battle pursuing the appropriate balance between the First Amendment rights and the national security interests has continued for decades. Why was the TikTok ban considered constitutional? Was it because of control by “foreign adversary” or because of its algorithm? I examined whether the TikTok case was in alignment with the stream of precedent that balanced national security interests and the First Amendment.

A. Members of City Council v. Taxpayers for Vincent

A group of election supporters and a sign corporation challenged an ordinance by Los Angeles prohibiting signs on public property, claiming it violated their First Amendment rights.[44] The Ninth Circuit deemed the ordinance unconstitutional on its face because the ordinance was overly broad and not the least restrictive way to achieve the city’s esthetic interest.[45] Nevertheless, the Supreme Court determined that the case was not suitable for a facial overbreadth challenge, as the ordinance did not affect third parties’ free speech in a manner different from that of the appellees.[46] The court concluded that the city’s objective of reducing visual clutter was a sufficient governmental interest that justified the content-neutral ban, and the restriction on speech was found to be narrowly tailored.[47]

However, Justice Brennan, Justice Marshall, and Justice Blackmun stated in their dissent that national security interests listed along with public health and public safety as “objective grounds” compared to aesthetic state interest that “creates difficulties for a reviewing court” in judging if government regulation does not trespass upon protections secured by the First Amendment” because judging whether the disputed matter is aesthetic or not is unavoidably subjective.[48] Such subjectivity “makes it all too easy for the government to fashion its justification for a law in a manner that impairs the ability of a reviewing court.”[49] The Justices warned that the Court “must avoid unquestioned acceptance of the City’s bare declaration of an aesthetic objective” so that the Court would not “fail in our duty to prevent unlawful trespasses upon First Amendment protections.”[50] This is one example of a case where opinions were divided over which government interests are objective and which are subjective concerning content-neutral regulations.

B. Brown v. Glines

An Air Force captain was removed from active duty after distributing petitions without approval from the base commander, violating Air Force Reg. 35-15 (3)(a)(1).[51] The captain argued the regulation violated the First Amendment and 10 U.S.C.S. § 1034 which protects servicemembers’ rights to communicate with Congress without official channels.[52] Though the district court and the court of appeals supported the captain, the Supreme Court reversed, holding that military discipline justified reasonable speech restrictions.[53] The regulation was deemed valid as it only limited speech necessary to maintain military effectiveness, not more than was reasonably necessary to protect the substantial government interest in securing military effectiveness thus violating neither the First Amendment nor § 103.[54]

The Supreme Court denied the captain’s complaint, holding that the Air Force Regulations do not impose restrictions on speech beyond those reasonably necessary to protect a substantial government interest.[55] The Air Force Regulations implement the Department of Defense Directive, which protects “right of expression . . . to the maximum extent possible, consistent with good order and discipline and the national security.”[56] The Air Force Regulations also prohibit commanders from interfering with the circulation of any materials other than those posing “a clear danger to military loyalty, discipline, or morale;” they specifically cannot interfere with material critical of the government or its policies.[57] The Regulations also permit the “[d]istribution of publications and other materials through the United States mail.”[58] The Court held that such regulations limiting speech do not violate the First Amendment.[59]

However, as in Members of City Council v. Taxpayers for Vincent, the Court’s position on government regulation in the interest of national security was once again split. Justice Brennan dissented, warning that the concept of national security or military necessity is so “seductively broad and has a dangerous plasticity” as to always seem high priority.[60] Accordingly, “[t]here is always a temptation” for the government to use this justification to encroach upon First Amendment rights, and the Court should examine the military-security argument with “a healthy skepticism.”[61]

C. Holder v. Humanitarian Law Project

In this case, the Court confirmed that it had the authority to review the Government’s national security determinations, but also acknowledged that substantial deference should be given to the Government’s judgment. The plaintiffs—two U.S. citizens and six organizations that wished to provide legal, non-violent support to the Partiya Karkeran Kurdistan (PKK) and the Liberation Tigers of Tamil Eelam (LTTE)—challenged 18 U.S.C. § 2339B, which prohibited providing “training” and “expert advice or assistance.”[62] PKK and LTTE were designated as “foreign terrorist organizations” by the Secretary of State.[63] The plaintiffs argued that § 2339B was impermissibly vague, thereby violating the Fifth Amendment and infringing their First Amendment rights.[64] The Court concluded that § 2339B was neither impermissibly vague nor in violation of the First Amendment because the law did not prohibit independent advocacy.[65] The Court deferred to the judgment of Congress and the Executive Branch that even seemingly innocent support for a foreign terrorist organization could further its terrorist activities.[66]

In this case, the Court was confident in its ability to review the Government’s asserted authority and expertise in matters of national security, stating that the Government’s interests “do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals.”[67] At the same time, the Court acknowledged its limited competence in collecting evidence and drawing factual inferences in the national security context. The Court’s decision must often rest on the Government’s informed judgment rather than concrete evidence; thus, “respect for the Government’s conclusions is appropriate.”[68]

Especially when addressing a “preventive measure” aimed at preventing foreign terrorist attacks in the context of international affairs, the Court deferred to the Government’s empirical conclusions because “[t]he Government … is not required to conclusively link all the pieces in the puzzle” before the Court gives weight to those conclusions.[69] The Court gave substantial deference to the Government’s empirical conclusions because sensitive matters of national security and foreign affairs weigh heavily on Congress and the Executive in determining which activities pose serious risks to U.S. foreign policy.[70] The Court found that the number of designated organizations was limited by the Executive Branch’s designation process, and Congress “has also displayed a careful balancing” of competing interests between First Amendment rights and national security interests by clarifying the disputed terms and developing limited exceptions.[71] Citing the Framers’ words, the Court held that “Congress has pursued that objective consistent with the limitations of the First and Fifth Amendments” by regulating the particular forms of support provided to foreign terrorist organizations. The Court relied on this evidence to support the Government’s argument.[72]

D. Analysis

There has been a split in opinions about the ability of the Court to review the Government’s interest in national security. Though national security is relatively objective rather than something as vague as aesthetic sensibilities, the Court itself acknowledged that it does not have perfect competence to review national security interests. Nevertheless, in the above cases, the Court recognized the Government’s interests. The court’s judgment in TikTok v. Garland presumably aligns with precedent because (1) TikTok’s “algorithms” were engineered in the “foreign adversary” (it is completely impossible for the Court to closely examine the actual mechanism of its algorithms) and (2) the law’s objective is a “preventative measure” against control from such an adversary Government. In addition, while not explicitly stated, the fact that the expressions on TikTok can also be made on other non-China-based platforms is likely to contribute to thedecision for this case.

III. What will happen in the world: Speech-Platform Cold War surrounding Chinese Apps

What Trump will do is likely to invite a chain reaction from like-minded countries. In 2020, India embarked on the first TikTok ban in the world, and Trump highlighted India’s ban in his Executive Order. The present digital world is so tightly connected that if highly confidential military information is leaked from a U.S. ally country, this may badly affect the U.S. and other allies.

However, the chain of such “U.S.-way” will polarize the world’s digital expressions into “on U.S.-made platform or not,” and may fuel the Tech Cold War. There is also an inherent risk that overly drastic measures to address national security concerns may cause an ironic result. Urgency may legally allow democratic governments to take too strong of measures, such as allowing the governments to access the database to “ensure” national security. I am introducing an interesting example in India.

India

Ahead of the U.S., India banned TikTok and 58 other Chinese apps in 2020 even though India is TikTok’s biggest foreign market with an estimated 120 million users.[73] Trump cited India’s ban in his executive order.[74] Territorial disputes with China, in which twenty Indian and four Chinese soldiers were killed, led India to ban Chinese apps as a countermeasure.[75] The Indian government warned that these apps stole and transmitted users’ data in an unauthorized manner and cited privacy concerns and threats to India’s sovereignty and security.[76] Though TikTok content in India was unique in its hyperlocal aspect, since the ban, Indian content creators and users have moved on to other “U.S.” platforms.[77] After the ban, Indian alternative platforms such as MX Taka Tak and Moj were launched. Still they were soon replaced by the U.S. tech giant’s platforms, such as Instagram Reels and YouTube Shorts.[78] Though TikTok did not pursue legal action against the ban in India, Pahwa, a digital policy expert and founder of tech website MediaNama, pointed out that the situation surrounding freedom of speech in the U.S. and in India is very different in the sense that the U.S. is a bigger market for TikTok and the U.S. First Amendment is pretty strong.[79]

India’s cybersecurity law has become more like China’s. Section 69 of the IT Act allows the government to require data to be stored in India and to issue directions for interception, monitoring, or decryption of individuals in India for the security interest, which enables law enforcement to access and use data easily.[80] This causes ironic concerns in India that people might be arrested for merely posting information on the Internet. To secure India’s security against China, India’s new law has become, ironically, similar China’s.

Conclusion

It is difficult and meaningless to predict at this time what the Trump administration will do after the 75-day pause of the TikTok ban. Modern digital speech is now thriving on platforms including SNS. However, if those platforms are foreign-made “black boxes,” it will be challenging for First Amendment rights to override the government’s interests in national security in the courts. Given the recent dramatic advancements in artificial intelligence technology, the ability of courts to review the regulation of speech on digital black boxes is likely to become increasingly tenuous, and constitutional protection is likely to become weaker.

In addition, the major platforms today are bifurcated into U.S.-made or Chinese-made platforms, and the TikTok ban law has once again reminded us of the intensity of the information and technology cold war between these two giants. This divide is not limited to the U.S. and China alone but has spread to each side’s like-minded countries. The U.S. allies use U.S.-made platforms, even non-local ones, while China’s friends use China-made platforms. Which side a nation belongs to determines the platform on which this nation’s citizens develop their discourse. Now that online speech itself belongs to different worlds, will the day ever come when a second Malta Summit will be held?

[1] TikTok is operated in the U.S. by TikTok Inc., an American company headquartered in California. TikTok Inc.’s parent company is ByteDance Ltd., operated in China.

[2] See Recent Case: U.S. WeChat Users Alliance v. Trump, Harv. L. Rev. Blog

, Oct. 2020), https://harvardlawreview.org/blog/2020/10/recent-case-_u-s-wechat-users-alliance-v-trump_/ .

[3] See Chris Iorfida, Trump’s TikTok flip-flop: The U.S. president-elect’s social media evolution, CBC News (Jan 16, 2025, at 12:59 PM CST), https://www.cbc.ca/news/world/trump-tiktok-timeline-1.7432843.

[4] See supra note 2.

[5] Exec. Order No. 13944, 85 FR 49929 (2020), https://trumpwhitehouse.archives.gov/presidential-actions/executive-order-addressing-threat-posed-tiktok/.

[6] See Microsoft says failed TikTok acquisition was ‘strangest thing’, BBC

(Sep 28, 2021), https://www.bbc.com/news/technology-58719674.

[7] Id.; See also H. Comm. on Energy & Com. , 118th Cong. 3, Full Committee Hearing Memo: TikTok Hearing, , = (March,20, 2023), available at https://d1dth6e84htgma.cloudfront.net/Memo_03_23_2023_Full_Committee_Tik_Tok_Hearing_55e129f043.pdf.

[8] See Donald Trump-era ban on TikTok dropped by Joe Biden, BBC (June 9, 2021), https://www.bbc.com/news/technology-57413227 [https://perma.cc/8NJ3-3VQD]; Exec. Order No. 14,034, 86 Fed. Reg. 31,423 (June 11, 2021).

[9] Id.

[10] Chair Rodgers to TikTok CEO: “Your Platform Should be Banned”, H. Comm. on Energy & Com. (Mar. 23, 2023), https://energycommerce.house.gov/posts/chair-rodgers-to-tik-tok-ceo-your-platform-should-be-banned [https://perma.cc/8UTU-966J].

[11] See Committee Majority Staff supra note 7, at 2.

[12] Id.

[13] See Sonal Gupta, TikTok Ban Looms in the US: Why India Banned it 5 Years Ago, What Happened Then, The Indian Express (Jan. 17, 2025 at 22:26 IST), https://indianexpress.com/article/explained/tiktok-ban-us-india-comparison-china-9784402/ [https://perma.cc/QM25-Y5YR].

[14] Brian Fung,Biden Just Signed a Potential TikTok Ban into Law. Here’s What Happens Next, CNN Business (April 24, 2024, at 11:23 EDT) https://www.cnn.com/2024/04/23/tech/congress-tiktok-ban-what-next/index.html [https://perma.cc/VV6T-8GCK]

[15] See Sapna Maheshwari & David McCabe, Congress Passed a Bill That Could Ban TikTok. Now Comes the Hard Part, N.Y. Times (April 23, 2024) https://www.nytimes.com/2024/04/23/technology/bytedance-tiktok-ban-bill.html?searchResultPosition=1 [https://perma.cc/KBV8-7DZB]; TikTok Inc. v. Garland, 604 U.S. 56, 65 (2025).

[16] H. Comm. on Energy & Com. , 118th Cong. 3, Full Committee Hearing Memo: TikTok Hearing,3 (March,20, 2023), available at https://d1dth6e84htgma.cloudfront.net/Memo_03_23_2023_Full_Committee_Tik_Tok_Hearing_55e129f043.pdf [https://perma.cc/BH33-9HCQ].

[17] See supra note 2.

[18] See supra note 15.

[19] See supra note 14.

[20] See Zeke Miller et al., Biden won’t enforce TikTok ban, official says, leaving fate of app to Trump, AP News (Jan 17, 2025) https://apnews.com/article/tiktok-ban-trump-executive-order-1e95d9836bf6f8c0c245ed1c3234d968 [https://perma.cc/E36Y-9R4C].

[21] Id.

[22] See Kurt Wagner, TikTok CEO joins Trump’s inauguration as app’s future remains in doubt, Financial Post (Jan 20, 2025) https://financialpost.com/news/tiktok-ceo-joins-trumps-inauguration.

[23] See Bobby Allyn, Trump signs executive order to pause TikTok ban, provide immunity to tech firms, NPR (Jan 20, 2025, at 20:22 ET) https://www.npr.org/2025/01/20/nx-s1-5268701/trump-executive-order-tiktok-ban [https://perma.cc/LH8R-M2VJ].

[24] See APPLICATION OF PROTECTING AMERICANS FROM FOREIGN ADVERSARY CONTROLLED APPLICATIONS ACT TO TIKTOK, White House (Jan 20, 2025) https://www.whitehouse.gov/presidential-actions/2025/01/application-of-protecting-americans-from-foreign-adversary-controlled-applications-act-to-tiktok/ [https://perma.cc/4BDG-BCC6].

[25] See supra note 20.

[26] See supra note 3.

[27] See supra note 23.

[28] Id.

[29] See Sapna Maheshwari et al., Tech’s TikTok Dilemma: Follow the Law or President Trump?, N.Y. Times (Jan. 25, 2025), https://www.nytimes.com/2025/01/24/technology/tiktok-ban-trump-amazon-apple-google.html [https://perma.cc/T47V-NT39].

[30] Id.

[31] See Brief of President Donald J. Trump as Amicus Curiae Supporting Neither Party at 4-5, TikTok Inc. v. Garland, 246 U.S. 656 (2024) (Nos. 24-656, 24-657).

[32] Id. at 2.

[33] Id. at 6.

[34] Id. at 16.

[35] TikTok Inc. v. Garland, 604 U.S. at 69.

[36] Id. at 1.

[37] Id. at 12-15.

[38] See Cornell Law School Legal Information Institute, intermediate scrutiny https://www.law.cornell.edu/wex/intermediate_scrutiny.

[39] TikTok Inc. v. Garland, 604 U.S. at 15.

[40] Id. at 15-16.

[41] Id. at 16.

[42] Id. at 19-22.

[43] See supra note 14.

[44] Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 792-93, (1984).

[45] Id. at 796.

[46] Id. at 801.

[47] Id. at 809.

[48] Id. at 821-22.

[49] Id. at 822.

[50] Id. at 823-24.

[51] Brown v. Glines, 444 U.S. 348, 349(1980)

[52] Id.at 349.

[53] Id.at 355.

[54] Id.at 355.

[55] Id.

[56] Id.

[57] Id.

[58] Id. (quoting Air Force Reg. 35–15(3)(a)(1) (1970)).

[59] Id.

[60] Brown v. Glines, 444 U.S. 348, 369, 100 S.Ct. 609, 614 (1980) (Brennan, J., dissenting).

[61] Id.

[62] Holder v. Humanitarian L. Project, 561 U.S. 1, 10, 14 (2010).

[63] Id., at 9.

[64] Id., at 14.

[65] Id., at 20, 24, 39.

[66] Id., at 29, 33, 36.

[67] Id., at 34.

[68] Id., at 34–35.

[69] Id. at 2728

[70] Id. at 2728

[71] Id. at 2728

[72] Id. at 2731

[73] See India bans TikTok, WeChat and dozens more Chinese apps, BBC (June 29, 2020), https://www.bbc.com/news/technology-53225720 [https://perma.cc/PES5-2YFA].

[74] See Exec. Order No. 1394, supra note 5.

[75] See Iorfida, Trump’s TikTok flip-flop, supra note 3; Krutika Pathi, Here’s what happened when India banned TikTok, PBS NEWS (Apr. 24, 2024, at 11:30 EST) https://www.pbs.org/newshour/world/heres-what-happened-when-india-banned-tiktok.

[76] See supra note 3.

[77] See supra note 75.

[78] See Diksha Madhok, What happened when the world’s most populous nation turned off TikTok, CNN Business (Mar.15, 2024, at 9:59 EDT) https://www.cnn.com/2024/03/14/tech/india-us-tiktok-ban-analysis-intl-hnk/index.html.

[79] Id.

[80] See Madison Clausius, NOTE: THE BANNING OF TIKTOK, AND THE BAN OF FOREIGN SOFTWARE FOR NATIONAL SECURITY PURPOSES, 21 Wash. U. Global Stud. L. Rev. 273, 282-284; See also Cybersecurity Laws and Regulations India 2025, iclg (June 11, 2024) https://www.lexorbis.com/cybersecurity-laws-and-regulations-india-2025/.

I. Introduction to Cobalt’s Wealth and Woe

The Democratic Republic of the Congo (DRC) holds the world’s largest cobalt reserves, producing an astounding 144,936 tons in 2022—73% of the global supply.[1] A cornerstone of modern technology, cobalt is a critical component of lithium-ion batteries, powering cellphones, laptops, electric vehicles, and other devices integral to renewable energy.[2] Its magnetic properties also support data storage, wind turbines, and medical equipment,[3] making it a strategic political, economic, and technological priority for the U.S., EU, China, and beyond.[4] Yet, the DRC’s immense underground wealth—estimated at over $24 trillion—has not translated to prosperity above ground due to geopolitical ambitions, economic inequality, and the devastating realities of artisanal mining.[5]

This analysis anchors an innovative approach to proactive reform by dissecting critical facets of cobalt mining in the DRC—breaking down the mining, consumer perception, Doe v. Apple’s influence, and bold solutions. It breaks down pro-active reform on Apple’s conflict mineral report from 2022, which states how “Apple’s … Commitment to Human Rights … governs how we treat everyone, including our customers, employees, business partners, and people at every level of our supply chain. We continue to source … minerals, such as cobalt … responsibly, while working to improve conditions in and around mining communities, including in the … DRC and adjoining countries.”

II. The Dark Shadow of Technology: Cobalt Miners Echoes from the Ground

Dubbed the “blood diamond of batteries,” cobalt drives an industry where an estimated 40,000 children labor in hazardous conditions, akin to debt bondage.[6] These miners face severe physical, mental, and emotional hazards, including exposure to toxic chemicals.[7] Despite its negative association, cobalt is not classified as a conflict mineral under U.S. law, unlike gold, tin, and tungsten’s regulation by the Dodd-Frank Act.[8] This oversight allows cobalt’s ethical violations to persist unchecked, as its extraction, while not tied directly to armed conflict, fuels systemic injustices.[9]

As it casts a long and toxic shadow over the DRC, advocates for reform, including Siddharth Kara in his book Cobalt Red, argue for reclassifying cobalt as a conflict mineral, calling for stricter traceability, accountability, and safety standards.[10] Yet, the discrepancy between industrial and artisanal mining remains blurred, leaving artisanal miners exposed to unregulated exploitation.[11] These miners, armed with little more than primitive tools, face dire conditions,[12] earning as little as $2.15 a day.[13] Women bear the dual, metaphorical and literal weight of grueling labor and family care,[14] while their children join the mines out of financial necessity, forfeiting education and well-being for survival.[15]

The risks in the cobalt supply chain are devastating.[16] Workers endure tunnel collapses, toxic dust exposure, and a lack of protective gear, with chronic injuries, lung disease, and paralysis.[17] Efforts like those by the Congregation of Our Lady of Charity of the Good Shepherd in Kolwezi offer glimpses of hope through education and meals, but the systemic challenges remain confounding.[18]

Beyond economic and humanitarian crises, the cobalt industry further pollutes the environment and endangers public health.[19] Communities commonly face carcinogenic exposure, birth defects, asthma, and “hard metal lung disease,”[20] alongside epidemics of cholera and measles.[21] Floods further devastate medical infrastructure,[22] while contaminated water and air turn once-livable regions into hazardous zones.[23] Gender-based violence and mental health crises deepen the suffering, leaving millions trapped in an unforgiving cycle of emergencies.[24]

The DRC’s political landscape is a volatile mix of corruption and instability, with only one peaceful power transfer in its 63 years of independence.[25] Electoral violence,[26] voter registration flaws, and distrust in the Independent National Electoral Commission deepen public skepticism.[27] Consequently, artisanal mining, restricted to ZEAs under SAESSCAM’s oversight, remains chaotic as regulatory gaps leave non-official zones rife with safety violations and exploitation.[28] Further, economic desperation drives the dysfunction: inflation soars past 20%, over 60% of the population lives in poverty, and officials exploit citizens through extortion for cobalt access and transport.[29] Corruption contaminates every level of control,[30] from selective enforcement of anti-corruption laws to nepotism and bribery in public services and the extractive sector, eroding institutional trust.[31] While the legal framework for reform exists, it’s crippled by political manipulation and systemic patronage.[32]

DRC President Tshisekedi’s tenure has been marred by unfulfilled promises of peace and anti-corruption.[33] With over 120 armed groups, including M23 and ISIS-linked ADF, the region has been destabilized for nearly three decades.[34] Even the state-sponsored FARDC, tasked with combating these threats, faces allegations of sexual assault, torture, and extrajudicial killings, further eroding reliance.[35]

Violence tied to mining operations compounds the crisis.[36] Military personnel linked to the Mutoshi project, run by Chemaf, reportedly burned homes in Mukumbi, displacing families and injuring children.[37] Farmers near the Metalkol RTR project, managed by an ERG subsidiary, have suffered devastating land losses.[38] These inter-communal conflicts fuel hate speech and impunity, stripping Congolese citizens of fundamental rights and forcing them into survival mode under dire conditions and, as noted above, without a helpful government to rely on.[39]

a. History of the DRC as a Focal Point for Cobalt Mining

Historically, the story of the DRC is one of exploitation and lost opportunity.[40] Following the First and Second Congo Wars, cobalt production rose from a modest 800 tons in 1994 to 14,800 tons by 2003, propelled by artisanal mining, multinational investments, and influential figures like George Forrest, John Bredenkamp, and Billy Rautenbach—who all have ties to the DRC armed forces.[41] A seismic shift occurred in 2005 when China’s industrial appetite drove massive cobalt purchases and the establishment of processing facilities, catapulting production to 27,100 tons by 2006.[42] In the years that followed, the Congolese government drastically expanded mining activities.[43]

As the world grappled with COVID-19 in 2020, cobalt miners in the DRC faced a ruthless choice—endure oppressive conditions, international labor violations, unsanitary housing, and relentless viral threats, or lose their livelihoods entirely.[44] Responding boldly, the Congolese government initiated sweeping renegotiations and regulatory reforms, reclaiming authority over its mineral riches.[45] While this worried Western investors, this pivot created a power shift, with China swiftly taking advantage and consolidating dominance in the cobalt market, reshaping the industry’s global hierarchy.[46]

Whereas the U.S was once a leader in cobalt control, the U.S. conceded, slashing its strategic raw materials stockpile from $22 billion in 1989 to a mere $888 million in 2022.[47] This laissez-faire approach has left U.S. industries increasingly dependent on Chinese cobalt, despite domestic efforts to promote eco-friendly mining and recycling.[48] Meanwhile, China has aggressively filled the void, dominating cobalt refining—crucial for energy and military tech.[49]

China’s strategy mirrors its broader African playbook: foreign direct investment skyrocketed from $75 million in 2003 to $4.2 billion in 2020, with trade ballooning from $10 billion in 2000 to $25 billion in 2021, weightily balanced on cobalt extraction.[50] While African nations, like the DRC, challenge China’s exploitative practices and unmet promises of ethical mining or infrastructure development, deals persist.[51] For instance, Chinese giants like Sinohydro Corp and China Railway Group have upped commitments to $7 billion in infrastructure projects, solidifying China’s foothold.[52] Additionally, Chinese-owned mines in the DRC employ over half the workforce under an infamous colonial-era cruelty.[53] As highlighted in the Congressional Executive Commission on China, sustainable mining and human rights protections are urgently needed.[54] Diverse collaborations are already shown by investments from countries including Australia, Japan, the United States, and Britain.[55]

With cobalt prices falling due to a surplus of it[56] and the EV industry’s pivot to lithium iron phosphate (LFP) batteries, now is the moment to break dependence on China-controlled mines,[57] like Australia’s $676 million investment in mineral processing.[58] For Apple, this is a rare chance to redefine leadership—turning resource challenges into catalysts for innovation and integrity.

III. The Crusade for Consumer and Corporate Conscience in Cobalt

Consumer awareness plays a pivotal role in the global struggle for control over critical resources like cobalt.[59] An informed, anti-exploitative consumer base can encourage businesses to adopt ethical sourcing and transparency, reshaping market dynamics[60] and driving a shift in purchasing habits that diversify supply chains.[61] Public figures like Ben Affleck and Kyrie Irving have amplified these demands, leveraging their platforms to spotlight corporate responsibility.[62] Similarly, cultural dialogues—spurred by podcasts from Joe Rogan[63] and Dua Lipa—encourage creative solutions and widespread dissemination.[64] However, the path to change is fraught with challenges.[65]

Ethical consumerism often raises costs, diminishing eagerness for advocacy.[66] China’s dominance in cobalt, unconstrained by democratic norms, stems from U.S. hesitation to procurement,[67] trapping their technological and renewable energy sectors in a labyrinth that puts them at a comparative disadvantage.[68] As Judge Nichols aptly described, this “chain of contingencies” underscores the intensifying legal battles shaping the future of corporate responsibility.[69]

IV. Doe’s Decree: A Complicated Congolese Canvas

The DRC plays a pivotal role as a key supplier in the global tech economy, particularly with American-based giants like Apple, Dell, Alphabet (Google), Microsoft, and Tesla’s procurement of cobalt.[70] Scrutiny over ethical procurement is not new but deeply entrenched.[71] As far back as 2009, the U.S. Department of Labor flagged cobalt production’s reliance on child labor, a systemic issue reaffirmed in subsequent reports.[72] By 2016, investigations uncovered exploitation within the industry by leaders Apple, Samsung, Microsoft, Daimler AG, and Volkswagen.[73]

Doe v. Apple stands as a stark reminder of the human cost underpinning our digital age.[74] Filed in December 2019 under the Trafficking Victims Protection Reauthorization Act (TVPRA), the lawsuit, originating in Washington, D.C., aimed to hold tech giants accountable for the corruption, violence, and legal voids embedded in their supply chains.[75] By invoking extraterritorial jurisdiction through the TVPRA, plaintiffs leveraged the defendants’ commercial presence.[76]However, the lawsuit was dismissed in November 2021, on the grounds of forum non conveniens and its speculative nature, raising concerns about corporate responsibility.[77]

Understanding the statutory framework behind this case is pivotal in navigating liability standards, especially when global giants like Apple are implicated. The TVPRA, enacted in 2000 and significantly amended in 2013, expanded both its reach and remedies.[78] Key amendments under 18 U.S.C. §1595 extended the statute of limitations to 10 years, while 18 U.S.C. §1596 extended extraterritorial jurisdiction over offenses outlined in Chapter 77—ranging from peonage (§1581) and forced labor (§1589) to trafficking (§1590) and child sex trafficking (§1591).[79] Crucially, it imposes liability on any individual or entity that “knowingly benefits, financially or by receiving anything of value from participation in a venture” involved in such violations.[80] This impaired the plaintiff’s claim in Doe: the crux of their argument focused on §1589 and §1590.[81] Nonetheless, there are still several legal obstacles to establishing standing and obtaining court remedies:

Extraterritorial Application of Law: In the wake of the Supreme Court’s Kiobel ruling, the Alien Tort Statute’s[82] extraterritorial application has been sharply restricted,[83] shifting the onus of demonstrating that the claims “touch and concern”[84] the related territory to the plaintiffs “with sufficient force” to displace the presumption against extraterritoriality; later decisions have reiterated that “mere corporate presence” and other generalized domestic corporate activity will not suffice.[85]
Forum Non Conveniens: By allowing a court to dismiss cases that may be better heard in other jurisdictions, cases shift to where harm occurred, but justice is often abandoned in the process.[86] This forces foreign nationals, such as cobalt mining victims in the DRC, to rely on their broken home system.[87]
Personal Jurisdiction and Limited Liability: According to the Daimler AG v. Bauman ruling, which further restricts the ability of courts to claim jurisdiction over international organizations, corporate arrangements and limited liability sometimes shield parent firms from being held responsible for the deeds of their subsidiaries.[88]
Vicarious Liability and Legal Standards: The absence of a unified international legal standard for vicarious liability, and the lack of a fully settled American standard for corporate accountability in transnational human-rights aiding-and-abetting claims, creates a murky landscape in determining corporate accountability for human rights abuses, particularly in instances of aiding and abetting.[89] With layers of intermediaries obscuring the mineral’s origin, accurately tracing its path from mine to market becomes a near-impossible mission, leaving companies swaying between unwitting complicity and willful exploitation.[90]
Choice/Conflict of Law and Statutes of Limitations: Legal doctrines set the stage and the stopwatch, determining where battles unfold and how quickly the fight begins, which might put plaintiffs at a disadvantage based on jurisdiction and preparation.[91]
The Price of Legal Actions and “Loser Pays”: Many prospective plaintiffs are discouraged, especially those with limited finances, by the high expenses of litigation and likelihood of having to pay the defendant’s legal fees if the case is lost.[92]
Practical Obstacles in Evidentiary Matters: Gathering sufficient evidence against multinational corporations is a tall task, enmeshed in intricate business practices, cross-border discovery hurdles, and threats faced by witnesses who risk retaliation.[93] Discovery may offer a path, but unlocking that door is no small feat, demanding precision and persistence amid laws that often clash in scope and scheme.[94]
Collective Redress and Class Action Mechanisms: Rulings like Wal-Mart v. Dukes have weakened the effectiveness of class actions in human rights cases, while the absence of comparable procedures in Europe is a major barrier.[95]

Amid growing scrutiny of global supply chains, Doe 1 v. Apple appealed in December 2022.[96] Plaintiffs accused intermediaries like Glencore, Zhejiang Huayou Cobalt Company, and the Eurasian Resources Group of diluting and obscuring forced labor products with ethically sourced materials.[97] This alleged tactic funneled through suppliers like Umicore, shielded tech giants from direct liability, despite purported awareness of exploitation.[98] However, the victims’ “case or controversy” hinged on the TVPRA and how these tech giants’ “participation in a venture” in the international cobalt supply chain intentionally exacerbated the exploitation, not just obtaining an unknown amount of cobalt as part of the global supply network.[99]

Under Rule 12(b)(6), the Plaintiffs’ case underwent rigorous scrutiny, with the terms “participation” and “venture” dissected to their principles.[100] While the Plaintiffs painted a vivid picture of corporations as covert orchestrators sustaining forced labor, proving this claim is a minefield, since the supply chain may reflect standard commercial dealings lacking a “tacit agreement.”[101] In essence, the Plaintiffs’ argument faltered under speculation, attempting to distinguish shared risks and profits without tangible evidence—likely unattainable due to opacity and numerous intermediaries.[102]

Furthermore, under Article III of the U.S. Constitution, courts hear disputes involving real adversaries, not hypothetical scenarios and questions.[103] Plaintiffs must show (1) a valid claim for damages, (2) a direct link to the defendant’s actions, and (3) a plausible fix through a court ruling.[104] Here, the court found no clear remedy, rendering Plaintiffs’ claims—unjust enrichment, negligent supervision, emotional distress, and injunctive relief—null under insufficient proof.[105]

V. Cobalt’s Chessboard of Moral Mines: The Game of Gain and Governance

The pursuit of ethical cobalt in the DRC is entangled in a web of contingencies that challenge success for all stakeholders. For example, even with innovations like cobalt-free batteries[106] or Apple pledging to rely solely on recycled cobalt in Apple-designed batteries,[107] a corporate exodus risks exacerbating its struggles by ceding control to China in the cobalt tug-of-war.[108]

Should Apple and other businesses shoulder blame for a sovereign state’s sins? What if that territory controls vital resources to nations and businesses alike, where a hostile rival exploits the same system without restraint? With international initiatives, like the United Nations Guiding Principles on Business and Human Rights,[109] OECD Guidance on due diligence in mineral supply chains,[110] and “Cobalt for Development,”[111] too weak to hold anyone accountable, where does responsibility lie? On corporations? On consumers, whose demand fuels the cycle? It’s easy to get lost in the semantics of a complicated system of contingencies.

The stakes transcend borders and boardrooms, as the path forward demands a collaborative effort between governments, businesses, consumers, and advocacy organizations—not in token gestures, but through diplomacy, targeted intervention, and strategic invention. Apple’s own commitment underscores a leap from paper to practice as solutions reconcile profit with purpose: “Although [we do] not directly purchase, procure, or source primary minerals, [we] are committed to meeting and exceeding internationally-accepted due diligence standards … in our supply chain.”[112] Opponents might argue that the black ink on a financial ledger cannot mix with the emotional concerns of a people’s suffering; however, aligning ethical values with economic value can drive profit to meet purpose—cutting costs, securing market exclusivity, ensuring compliance, and winning over ethical consumers.[113]

VI. Conclusion — Weighing Wills and Ways Forward for Ethical Cobalt

Investing in the DRC is not just ethical—it’s strategically sound. A recent EU agreement was reached by legislators of Parliament and Council, that prohibits businesses of all sizes from distributing goods within the area that were manufactured using forced labor,[114] which can impact Apple’s 24% share of the EU smartphone market.[115] If the toll of compliance seems steep, the fines for failure may be far steeper.[116] Beyond being home to the world’s largest cobalt reserves, the DRC also boasts vast natural wealth: timber, oil, diamonds, copper,[117] hydropower potential, arable land, immense biodiversity, and the planet’s second-largest rainforest.[118] These resources, alongside billions of humanitarian and bilateral aid,[119] represent untapped opportunities for transforming cobalt’s legacy from a scar of exploitation in the DRC to a spark of innovation globally.

[1] Bruno Venditti, Ranked: The World’s Top Cobalt Producing Countries, VISUAL CAPITALIST (July 24, 2023), www.visualcapitalist.com/ranked-the-worlds-top-cobalt-producing-countries.

[2] Cobalt Institute, Why Is Cobalt Important, www.cobaltinstitute.org/essential-cobalt-2/#:~:text=Cobalt%20is%20used%20in%20the,conductors%20in%20computers%20and%20phones (accessed Feb. 24, 2024).

[3] Id.

[4] Venditti, supra note 1.

[5] Apple Inc., United States Securities and Exchange Commission FORM SD Specialized Disclosure Report, APPLE INC. (Feb. 2023), https://www.apple.com/euro/supplier-responsibility/l/generic/pdf/Apple-Conflict-Minerals-Report.pdf [https://perma.cc/G8LC-79EJ].

[6] Leigh Day, Cobalt Mining in the Democratic Republic of Congo: Where Next?, LEXOLOGY (June 22, 2023), www.lexology.com/library/detail.aspx?g=2deb7a71-3439-402e-8afd-5ba917931367#:~:text=Holding%20the%20tech%20giants%20to%20account%20%2D%20Doe%20v%20Apple&text=The%20Plaintiffs%20sought%20compensation%20for,Protection%20Reauthorization%20Act%20(TVPRA) [https://perma.cc/PJ3M-Q7DQ].

[7] Id.

[8] Patricia Ndagano, No, Cobalt Is Not a Conflict Mineral, African Arguments (May 5, 2020), africanarguments.org/2020/05/no-cobalt-is-not-a-conflict-mineral/#:~:text=Conflict%20minerals%20refer%20to%20a,groups%20in%20the%20eastern%20DRC [https://perma.cc/QW6A-4EE9]. The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 represents a legislative response to the complexities of financial ethics, transparency, and global human rights. Born from the ashes of the 2008 financial crisis, this expansive statute not only reshaped financial regulation to shield American consumers from market excesses but also sought accountability for corporations benefiting from minerals that finance violent conflict in Central Africa. Notably, Section 1502 compels companies to meticulously trace and publicly disclose the origins of four key conflict minerals—tin, tantalum, tungsten, and gold—derived from the Democratic Republic of the Congo and its neighboring countries. By linking corporate transparency directly to humanitarian outcomes, the Act aims to sever financial lifelines that sustain armed groups perpetrating severe human rights abuses and destabilizing a geopolitically sensitive region;

United States Government Accountability Office, Conflict Minerals: 2022 Company Reports on Mineral Sources Were Similar to Those Filed in Prior Years, GAO-23-106295 (July 2023), www.gao.gov/assets/gao-23-106295.pdf.

[9] Id.

[10] See Siddharth Kara, Cobalt Red: How the Blood of the Congo Powers Our Lives (2023).

[11] Id.

[12] Terry Gross, How ‘Modern-Day Slavery’ in the Congo Powers the Rechargeable Battery Economy, NPR (Feb. 1, 2023, 12:38 PM), https://www.npr.org/sections/goatsandsoda/2023/02/01/1152893248/red-cobalt-congo-drc-mining-siddharth-kara [https://perma.cc/8BUW-XUNH]

[13] Valentina Ruiz Leotaud, Families in the DRC Increasingly Rely on Children Working in Cobalt Mines — Report, MINING.COM (July 16, 2023, 8.29 AM), [https://perma.cc/WV4M-T96D].

[14] Supra note 13.

[15] Amnesty Int’l, “This Is What We Die for”: Human Rights Abuses n The Democratic Republic of the Congo Power the Global Trade in Cobalt at 33, 37 (2016), www.amnesty.org/en/wp-content/uploads/2021/05/AFR6231832016ENGLISH.pdf [https://perma.cc/A8CV-H4RP].

[16] Id.

[17] Id. at 5, 22, 29.

[18] Id. at 32.

[19] ‘Cobalt Red’: Smartphones and Electric Cars Rely on Toxic Mineral Mined in Congo by Children, Democracy Now! (July 13, 2023), www.democracynow.org/2023/7/13/cobalt_red_kara.

[20] Id.

[21] World Health Organization, Democratic Republic of the Congo Faces Acute Health Crisis Amid Rising Violence, (June 23, 2023), www.afro.who.int/countries/democratic-republic-congo/news/democratic-republic-congo-faces-acute-health-crisis-amid-rising-violence [https://perma.cc/AFF2-QWRX].

[22] Id.

[23] The Conversation, ‘We Miners Die a Lot’: The Appalling Conditions and Poverty Wages of Congo Cobalt Miners, Fast Company (Feb. 4, 2024), www.fastcompany.com/91021938/we-miners-die-a-lot-the-appalling-conditions-and-poverty-wages-of-congo-cobalt-miners [https://perma.cc/5VKR-9A6K].

[24] Democracy Now!, supra note 21.

[25] Five Key Issues at Stake in the DR Congo’s Crucial Election, Al Jazeera (Dec. 11, 2023), www.aljazeera.com/news/2023/12/11/five-key-issues-at-stake-in-the-dr-congos-crucial-election [https://perma.cc/DG2F-C7KA].

[26] Democratic Republic of the Congo, Global Centre for the Responsibility to Protect (July 15, 2025), www.globalr2p.org/countries/democratic-republic-of-the-congo [https://perma.cc/3BAR-DWPK].

[27] Democracy Now!, supra note 21.

[28] Kara, supra note 12.

[29] Sarah Carter, U.S. Helps Negotiate Cease-fire for Congo Election as World Powers Vie for Access to Its Vital Cobalt, CBS NEWS (Dec. 19, 2023), https://www.cbsnews.com/news/congo-cease-fire-election-cobalt-mining/ [https://perma.cc/35V7-SBL7].

[30] Id.

[31] Democratic Republic of the Congo – Market Overview, Int’l Trade | TRADE.GOV (Dec. 14, 2022), https://www.trade.gov/country-commercial-guides/democratic-republic-congo-market-overview [https://perma.cc/D79A-LG6H].

[32] Id.

[33] Kara, Supra note 30.

[34] Al Jazeera, Supra note 27.

[35] Global Centre for the Responsibility to Protect, supra note 28.

[36] Democratic Republic of the Congo: Industrial Mining of Cobalt and Copper for Rechargeable Batteries Is Leading to Grievous Human Rights Abuses, Amnesty Int’l(Sept. 12, 2023), https://www.amnesty.org/en/latest/news/2023/09/drc-cobalt-and-copper-mining-for-batteries-leading-to-human-rights-abuses/ [https://perma.cc/36FN-YNEX].

[37] Amnesty Int’l, supra note 38. (Chemaf is a leading producer of battery-grade copper and cobalt, operating high-capacity, ISO-certified plants at the core of Africa’s mineral-rich zones. With flagship assets and next-gen processing underway, it’s rapidly becoming a cornerstone of the world’s sustainable future.); See Chemaf, Our Business, https://chemaf.com/our-business/ [https://perma.cc/36FN-YNEX] (last visited Apr. 7, 2025).

[38] Amnesty Int’l, supra note 38.

[39] Id.

[40] Andrew L. Gulley, One Hundred Years of Cobalt Production in the Democratic Republic of the Congo, 79 Resources Policy Article 103007 (2022), https://doi.org/10.1016/j.resourpol.2022.103007.

[41] Id. at 7.

[42] Id.

[43] Id.

[44] Human Rights Watch, DR Congo: Mine Workers at Risk During Covid-19, (June 11, 2020), www.hrw.org/news/2020/06/11/dr-congo-mine-workers-risk-during-covid-19?gad_source=1&gclid=CjwKCAiAq4KuBhA6EiwArMAw1Fn8CJ302_2tYfMAiJYfFTmXbWnbX0Kg3yzm-bpFKCRUvr345KtNLxoCEZ4QAvD_BwE [https://perma.cc/9FKC-ZDAC].

[45] Supra note 41.

[46] Melissa Skorka, To Counter China, Look to the Democratic Republic of Congo, Wall St. J. (Apr. 27, 2023, 6:43 PM ET), https://www.wsj.com/business/to-counter-china-look-to-the-democratic-republic-of-congo-cobalt-rare-earth-9191253a?mod=Searchresults&pos=1&page=1.

[47] Sean Carberry, Critical Mineral: United States Seeking Alternatives to Chinese Cobalt, 107 National Defense 28, 28 (Aug. 2022).

[48] Id.

[49] South China Morning Post, Chinese Firms Agree to Raise Investment in Democratic Republic of Congo Copper-cobalt Mining Deal, Yahoo! Finance (Feb. 4, 2024), finance.yahoo.com/news/chinese-firms-agree-raise-investment-093000661.html.

[50] Gracelin Baskaran, A Window of Opportunity to Build Critical Mineral Security in Africa, CSIS (Oct. 10, 2023), www.csis.org/analysis/window-opportunity-build-critical-mineral-security-africa [https://perma.cc/F9WR-NMLD].

[51] Id.

[52] South China Morning Post, supra note 51.

[53] David Thomas, Workers Report ‘Colonial-era’ Abuse at Congolese Cobalt Mines, African Business (Nov. 9, 2021), african.business/2021/11/energy-resources/workers-report-colonial-era-abuse-at-congolese-cobalt-mines [https://perma.cc/5BE3-XWAZ].

[54] Congressional-Executive Commission on China, From Cobalt to Cars: How China Exploits Child and Forced Labor, YouTube (Nov. 14, 2023), www.youtube.com/watch?v=oSXo4dPpRQ8.

[55] Supra note 52.

[56] Franchesca Viernes, Oversupply, Low Prices for Cobalt to Persist in 2024 as Demand Slips, S&P Global Commodity Insights (Dec. 27, 2023), www.spglobal.com/commodityinsights/en/market-insights/latest-news/metals/122723-oversupply-low-prices-for-cobalt-to-persist-in-2024-as-demand-slips.

[57] Pratima Desai, Cobalt Supplies to Swamp Market, Pressure Prices Further, Reuters (Mar. 7, 2023), www.reuters.com/markets/commodities/cobalt-supplies-swamp-market-pressure-prices-further-2023-03-07/#:~:text=Global%20supplies%20of%20refined%20cobalt,rise%208%25%20to%20205%2C000%20tonnes [https://perma.cc/4XLX-J4NL].

[58] Australia Looks to Boost Domestic Mineral Processing Industry With $676 Million Fund, Benchmark Minerals (June 21, 2023), source.benchmarkminerals.com/article/australia-looks-to-boost-domestic-mineral-processing-industry-with-676-million-fund.

[59] Supra note 13.

[60] See Carlos Moncayo, The Economic Benefits and Best Practices of Ethical Sourcing, Forbes (Apr. 4, 2023, 8:30am), www.forbes.com/councils/forbesbusinesscouncil/2023/04/04/the-economic-benefits-and-best-practices-of-ethical-sourcing/ [https://perma.cc/R6M5-WWYG]

[61] See Beyond Dependence: The Power of Supply Chain Diversification, Exiger (Sept. 4, 2024), https://www.exiger.com/perspectives/beyond-dependence-the-power-of-supply-chain-diversification/ [https://perma.cc/X4X4-F6SY].

[62] Josh Wilson, Entertainment Industry Becomes More Vocal About the Cobalt Situation in the Congo, Forbes (Mar. 15, 2023, 8:07 AM), www.forbes.com/sites/joshwilson/2023/03/15/entertainment-industry-becomes-more-vocal-about-the-cobalt-situation-in-the-congo/?sh=2b7eabbbddf3 [https://perma.cc/LJ4K-4H5D].

[63] Id.

[64] Stephanie Kaloi, Apple’s Tim Cook Tells Dua Lipa ‘We Can’ Guarantee Children Aren’t Mining iPhone 15’s Cobalt, The Wrap (Nov. 18, 2023), www.thewrap.com/apple-iphone-cobalt-tim-cook-dua-lipa-children-miners-labor.

[65] Luisa Gatward, Shopping Habits Are Changing, What Will It Be Like in 2030?, The Giving Machine (Aug. 10, 2023), www.thegivingmachine.co.uk/blog/posts/how-our-shopping-habits-are-changing/#:~:text=The%20shopping%20habits%20of%20consumers,more%20selective%20in%20their%20spending [https://perma.cc/R9NY-EVFJ].

[66] Derek Pankratz et al., The Cost of Buying Green, Deloitte Insights (June 17, 2022), www.deloitte.com/us/en/insights/industry/retail-distribution/consumer-behavior-trends-state-of-the-consumer-tracker/sustainable-products-and-practices-for-green-living.html [https://perma.cc/L8G5-2FTY].

[67] Mary Louise Kelly et al., The U.S. Supports China’s Growth if It ‘Plays by the Rules,’ Commerce Secretary Says, NPR (Dec. 5, 2023, 5:00am), www.npr.org/2023/12/05/1217040572/the-u-s-supports-chinas-growth-if-it-plays-by-the-rules-commerce-secretary-says [https://perma.cc/WG69-JKTN].

[68] Daniel Quiggin & Richard King, Cobalt Refining Power Gives China an Advantage in the Race for EV Battery Dominance, Resource Trade Earth (July 4, 2023), resourcetrade.earth/publications/critical-metals-ev-batteries [https://perma.cc/APF4-SZ7U].

[69] Gert Van Calster, A Quick (Jurisdictional) Note on the Cobalt Supply Chain Litigation, Gavc Law(Nov. 2, 2020), gavclaw.com/2020/02/11/a-quick-jurisdictional-note-on-the-cobalt-supply-chain-litigation[https://perma.cc/6Y6A-JQD7].

[70] William S. Dodge, Oral Argument in Doe v. Apple, Transnational Litigation Blog (Dec. 13, 2022), tlblog.org/oral-argument-in-doe-v-apple [https://perma.cc/NJE4-XCUW].

[71] Supra note 10.

[72] Id.

[73] Amar Toor, Apple and Samsung Suppliers Linked to Child Labor in Africa, Report Says, The Verge (Jan. 18, 2016, 6:01 PM), www.theverge.com/2016/1/18/10786714/apple-samsung-child-labor-cobalt-congo-amnesty [https://perma.cc/LQ78-RQF2].

[74] Doe I v. Apple Inc., No. 1:19-CV-03737 (CJN), 2021 WL 5774224 (D.D.C. Nov. 2, 2021), aff’d sub nom. Doe 1 v. Apple Inc., No. 21-7135, 2024 WL 925889 (D.C. Cir. Mar. 5, 2024).

[75] Id.

[76] Id.

[77] Maria Piontkovska & Doriane Nguenang, US Court Dismissed Cobalt Mining Forced Labor Lawsuit Against Tech Companies – Global Supply Chain Compliance, Global Supply Chain Compliance (Nov. 18, 2021), supplychaincompliance.bakermckenzie.com/2021/11/18/us-court-dismissed-cobalt-mining-forced-labor-lawsuit-against-tech-companies [https://perma.cc/Y7FD-YVXT].

[78] Supra note 71.

[79] Id.

[80] Id.

[81] Id.

[82] Alien Tort Statute, 28 U.S.C. § 1350 (2018).

[83] Tara McGrath, Kiobel v. Royal Dutch Petroleum: Delineating the Bounds of the Alien Tort Statute, 8 Duke J. Const. L. & Pub. Pol‘y Sidebar (2012).

[84] Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 124–25 (2013).

[85] Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931, 1936–37 (2021); Stephen P. Mulligan, Cong. Rsch. Serv., R44947, The Alien Tort Statute: A Primer 13, 20 (Jan. 11, 2022); Gwynne L. Skinner, Beyond Kiobel: Providing Access to Judicial Remedies for Violations of International Human Rights Norms by Transnational Business in a New (Post-Kiobel) World, 46 Colum. Hum. Rts. L. Rev. 158, 162 (2014).

[86] Id.

[87] Joseph N. Sotile, Forum Non Conveniens and Corruption: A Lofty Hurdle or a Solid Barrier to Justice?, Colum. J. Transnat’l L. (2023), www.jtl.columbia.edu/bulletin-blog/forum-non-conveniens-and-corruption-a-lofty-hurdle-or-a-solid-barrier-to-justice [https://perma.cc/87RL-7WCE].

[88] Daimler AG v. Bauman, 134 S. Ct. 746, 760 (2014).

[89] Jindan-Karena Mann, Tech Company Liability in the Context of the Cobalt Supply Chain, Rethinking SLIC (Dec. 23, 2020), www.rethinkingslic.org/blog/tort-law/78-tech-company-liability-in-the-context-of-the-cobalt-supply-chain [https://perma.cc/H2QD-BW92].

[90] Id.

[91] McGrath, supra note 85.

[92] Mann, supra note 89.

[93] Id.

[94] Alvaro Cuervo-Cazurra et al., Multinationals’ Misbehavior, 56 J. World Bus.101244, 17 (2021).

[95] Timothy D. Edwards, Class Action Suits After Walmart v. Dukes, 84 Wis. Law. (Nov. 2011).

[96] Doe 1 v. Apple Inc., 96 F.4th 403 (D.C. Cir. 2024).

[97] Id. at 407.

[98] Id. at 406–07.

[99] Id.

[100] Id. at 414–16.

[101] Id. at 416.

[102] Id. at 414.

[103] Id. at 408.

[104] Id. at 405.

[105] Id. at 416–17.

[106] Supra note 62.

[107] Press Release, Apple, Apple Will Use 100 Percent Recycled Cobalt in Batteries by 2025 (Apr. 13, 2023), www.apple.com/newsroom/2023/04/apple-will-use-100-percent-recycled-cobalt-in-batteries-by-2025 [https://perma.cc/2QDW-PBJW].

[108] Stéphanie Thomson, 4 Companies Helping Rebuild Conflict-Ridden Countries, World Economic Forum (May 6, 2016), www.weforum.org/stories/2016/05/4-companies-helping-rebuild-conflict-ridden-countries/ [https://perma.cc/4D6V-VT7K].

[109] U.N. Hum. Rts. Off. of the High Comm’r, Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, U.N. Doc. HR/PUB/11/04 (June 16, 2011), www.ohchr.org/sites/default/files/documents/publications/guidingprinciplesbusinesshr_en.pdf [https://perma.cc/U7WQ-QL52].

[110] Supra note 37.

[111] Cross-industry Partnership to Enhance Sustainable Cobalt Mining, BASF, https://www.basf.com/global/en/who-we-are/sustainability/we-source-responsibly/cobalt-initiative.html (last visited Feb. 24, 2024) [https://perma.cc/SZ74-7NJ8].

[112] Adams, supra note 7.

[113] Moncayo, supra note 62.

[114] EU Reaches Provisional Agreement on Banning Products Made With Forced Labour, Cooley (Mar. 13, 2024), https://www.cooley.com/news/insight/2024/2024-03-13-eu-reaches-provisional-agreement-on-banning-products-made-with-forced-labour [https://perma.cc/7PW3-2CBB].

[115] Federica Laricchia, Apple’s Share of Smartphone Shipments in Europe 2019-2023, Statista (Jan. 31, 2024), www.statista.com/statistics/1232268/apple-smartphone-market-share-in-europe.

[116] William M. Sullivan Jr. & Fabio Leonardi, Prosecuting Corporations That Benefit Financially from Human Trafficking, Pillsbury (July 24, 2019), https://www.pillsburylaw.com/en/news-and-insights/prosecuting-corporations-that-benefit-financially-from-human-trafficking.html [https://perma.cc/P9NM-DCL8].

[117] UN Environment Programme, Can the Democratic Republic of the Congo’s Mineral Resources Provide a Pathway to Peace?, UNEP (Sept. 20, 2022), https://www.unep.org/news-and-stories/story/can-democratic-republic-congos-mineral-resources-provide-pathway-peace.

[118] The World Bank in DRC, World Bank (Sept. 25, 2023), https://www.worldbank.org/en/country/drc/overview#:~:text=DRC%20is%20endowed%20with%20exceptional,not%20benefited%20from%20this%20wealth [https://perma.cc/C6FD-RWGQ].

[119] U.S. Embassy Kinshasa, What the United States Is Doing in the DRC, U.S. Embassy (Mar. 4, 2024), cd.usembassy.gov/what-the-united-states-is-doing-in-the-drc [insert permalink].