In extensive court filings this week, social media giant TikTok and its parent company, ByteDance, laid out their arguments as to why a new law that could see the service effectively banned in the United States is unconstitutional and should be struck down.
The filing, in the US Court of Appeals for the District of Columbia Circuit, is directed against the Protecting Americans from Applications Controlled by Foreign Adversaries Act, bipartisan legislation signed into law by President Joe Biden earlier this year. The law gave the company until January 19, 2025 to sell TikTok to a non-Chinese company or cease operations within the US.
TikTok, a platform that allows users to create, post, share and comment on short-form videos, has approximately 170 million regular users in the US.
U.S. officials have long expressed concern that Chinese ownership of the company creates a national security risk.
They argue that it could allow the Chinese Communist Party to access the personal information of millions of Americans, while also allowing Beijing to exert control over the types of messages the platform offers its users.
In its court filing, the company says the law is an unprecedented violation of the right to free speech enshrined in the First Amendment of the Constitution.
“Never before has Congress expressly designated and closed a specific forum for expression,” the lawsuit says. “Never before has Congress silenced so much expression in a single act.”
Effective ban
In its filing, TikTok laid out several reasons why selling itself — what the law refers to as a “qualified divestiture” — is a practical impossibility. Among these is that TikTok is a massive global service with hundreds of millions of users built on a foundation of billions of lines of computer code. The thousands of developers who created that code work for ByteDance and would be ineligible to continue working on the service under a sale that meets the law’s requirements.
If the company separated its US operations from the rest of the TikTok network, creating an island with US-only content, it said TikTok’s value to global advertisers would plummet, leaving it unable to compete with other social networks.
Finally, the company noted that TikTok’s “recommendation engine” — the algorithm that determines how it personalizes content for users — was developed in China and cannot be legally sold to a foreign company.
“Just as the United States restricts the export of technologies of American origin (for example, certain computer chips), the Chinese government regulates the transfer of technologies developed in China,” the filing says. “The Chinese government has made clear in public statements that it would not allow a forced divestment of the recommendation engine.”
Because the sale of the company is unfeasible, the company argues, “The effect of the law is, therefore, a prohibition.”
Vain attempts to negotiate
The filing also details extensive efforts by TikTok and ByteDance to resolve government concerns without a divestment, including $2 billion spent on “Project Texas,” an initiative that would have housed all data related to TikTok’s American users on proprietary equipment. and operated by Oracle Corp., an American technology company.
It also contains the text of a 90-page agreement the company negotiated with the Justice Department that was intended to address all of the government’s national security concerns.
The deal, which was not accepted by the government, took the unusual step of providing the government with the ability to unilaterally shut down TikTok’s US operations if the company was found to be violating its promises.
Comments from the Department of Justice
The Justice Department issued a statement Thursday vowing to defend the law in court, saying it “addresses critical national security concerns in a manner that is consistent with the First Amendment and other constitutional limitations.”
The agency also referred to a national security law in force in China that requires companies there to share the information they possess with the country’s intelligence services if asked to do so.
“Along with others in our intelligence community and in Congress, the Justice Department has consistently warned about the threat from autocratic nations that can use technology — like the apps and software that run on our phones — against us,” he said. the Department.
“This threat is compounded when these autocratic nations require companies under their control to secretly hand over sensitive data to the government.”
Defenders of freedom of expression in favor
Organizations that support the preservation of the right to freedom of expression told the Voice of America who believe TikTok has powerful arguments on its side in the upcoming legal battle.
“The TikTok ban is a truly troubling and misguided attempt to protect Americans’ privacy and data security,” said George Wang, an attorney with the Knight First Amendment Institute.
“It’s troubling because it authorizes the government to ban an extremely popular speech platform that is used by millions of Americans every day, and that poses a serious threat to the First Amendment rights of those Americans,” Wang said. “And it is “wrong because lawmakers simply have better ways to address the privacy and security concerns they have raised.”
“I think they have a very strong case that this law is eminently unconstitutional,” said David Greene, civil liberties director and attorney for the Electronic Frontier Foundation.
Greene noted that in the past, Congress has specifically exempted communications services from laws restricting foreign ownership of companies operating in the US.
“It seemed to be anathema to democratic principles to restrict the free flow of information around the world and into the country,” Greene said.
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