Attorneys representing the social media application TikTok and its China-based parent company, ByteDance, are poised to clash with lawyers from the Department of Justice on Monday in a case that could decide the fate of the service in the United States.
The case, which will be heard in the U.S. Court of Appeals for the District of Columbia Circuit, consolidates several lawsuits challenging the constitutionality of a law enacted earlier this year. The measure, which had broad bipartisan support in Congress, demands that ByteDance sell TikTok to a non-Chinese owner before January 19, 2025, or be forced to shut down its service within the U.S.
The law’s challengers claim that it represents an unconstitutional suppression of free speech, violating the First Amendment rights of TikTok’s estimated 170 million U.S. users.
The Department of Justice contends that TikTok presents a national security threat because it collects personal data of American citizens and, despite assurances to the contrary, could be compelled by the Chinese government to provide that data on demand.
The government also says that the platform’s recommendation algorithm, which determines what content individual users see, could be manipulated by the Chinese government to shape public opinion in the U.S.
TikTok’s argument
Congress passed the measure targeting TikTok, known as the Protecting Americans from Foreign Adversary Controlled Applications Act, as part of a sprawling foreign aid bill in April. The measure gave the company a 270-day deadline to sell itself or shut down operations in the U.S. The company immediately protested, claiming that the move was plainly a violation of the First Amendment.
“Never before has Congress expressly singled out and shut down a specific speech forum,” the company said in legal filings. “Never before has Congress silenced so much speech in a single act.”
In addition, the company insisted that it is being forced to choose between two untenable alternatives. A shutdown that cuts the U.S. out of a global network of billions of TikTok users would be extremely onerous to manage from a technological standpoint and would greatly devalue TikTok as an advertising platform, making it impossible for the company to compete with other social networks.
On the other hand, the forced sale of the platform to a non-Chinese company would leave the thousands of Chinese developers who built TikTok and continue to maintain it ineligible to continue working on the platform, threatening its continued operation.
Additionally, the sale would not include TikTok’s recommendation algorithm, the heart of the service’s appeal to users, which Chinese law prohibits ByteDance from selling. The company argues that without it, the service would be far less popular.
Creators weigh in
The attorneys arguing against the ban will be appearing on behalf of more than ByteDance and TikTok. The case consolidates the company’s complaint with those of various U.S. TikTok users who claim that they would suffer irreparable harm if the service were taken away.
Many have amassed huge numbers of followers on the platform and have used TikTok to advertise their companies, monetize their creative output, or deliver political or other messages to a wide audience.
Jacob Huebert, the president of Liberty Justice Center, filed one of the original cases on behalf of Based Politics, a conservative-libertarian media organization that uses TikTok to reach a broad variety of viewers.
“Our client is an organization that uses TikTok to spread ideas about free markets and individual liberty in particular, and with TikTok, they can reach an audience of young people with those ideas that they can’t reach anywhere else,” Huebert told VOA.
“If this ban on TikTok is allowed to take effect, it will shut down the speech of all of these people, and it will eliminate our client’s ability to get their message out to the audience that they want to reach, and that’s why this case presents a First Amendment free-speech issue,” Huebert said.
Another creator involved in the suit is Brian Firebaugh, a Texas cattle rancher whose @cattleguy account has more than 450,000 followers. Firebaugh has said that TikTok drives the overwhelming majority of his sales.
In videos posted to his account, Firebaugh has accused the government of “extreme overreach” in its efforts against TikTok. He described the movement to block the TikTok ban as “small-business owners and some of the biggest creators on TikTok literally fighting for their livelihoods.”
Government’s case
In its reply to the lawsuit, the Department of Justice has argued that any infringement on TikTok users’ First Amendment rights is superseded by the government’s interest in preserving national security.
“The Chinese government, which views the United States as a geopolitical rival, has broad authority and practical ability to require Chinese companies to secretly assist China’s intelligence, law enforcement and national security efforts,” the brief says.
“Given TikTok’s broad reach within the United States, the capacity for China to use TikTok’s features to achieve its overarching objective to undermine American interests creates a national security threat of immense depth and scale.”
In an early bid to stave off the law demanding its sale, TikTok had tried to appease U.S. authorities by launching what it referred to as “Project Texas.” The billion-dollar program was meant to sequester the data of all U.S.-based TikTok users in servers maintained in the state of Texas by the U.S. technology firm Oracle.
U.S. officials have dismissed the effort as cosmetic and ineffective.
In an appendix to the government’s filing, the Justice Department also alleged that the company has a history of sharing U.S. user data with its Chinese workforce. In one example, a declaration provided by David Newman, a principal deputy assistant attorney general in the National Security Division of the Department of Justice, wrote that the company has used an internal communications platform called Lark that “collected and stored large amounts of personal data.”
“TikTok employees have communicated with their co-workers on Lark, and, at various points in time, have sent significant amounts of restricted U.S. user data (including but not limited to personally identifiable information) to each other through Lark channels to address various operations issues,” the declaration said.
“This resulted in certain sensitive U.S. person data being contained in Lark channels and, therefore, stored on Chinese servers and accessible to ByteDance employees located in China.”
