In extensive court filings this week, the 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 U.S. Court of Appeals for the District of Columbia Circuit, targets the Protecting Americans from Foreign Adversary Controlled Applications Act, a piece of bipartisan legislation signed into law by President Joe Biden earlier this year. The law gave the company until January 19, 2025, to either sell TikTok to a non-Chinese company or cease operations within the U.S.
TikTok, a platform that allows users to create, publish, share, and comment on short-form videos, has an estimated 170 million regular users in the U.S.
American officials have long expressed their concern that the company’s Chinese ownership creates a national security risk.
They argue that it could allow the Chinese Communist Party access to the personal information of millions of Americans, while at the same time allowing Beijing to exercise control over the kinds of messages that the platform serves up to 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 to the Constitution.
“Never before has Congress expressly singled out and shut down a specific speech forum,” the complaint says. “Never before has Congress silenced so much speech in a single act.”
Effective ban
In its filing, TikTok expressed 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 meeting the law’s requirements.
If the company were to sever its United States operations from the rest of the TikTok network, creating an island containing U.S.-only content, it said the value of TikTok to global advertisers would plummet, leaving it unable to compete with other social networks.
Finally, the company pointed out that TikTok’s “recommendation engine” — the algorithm that determines how it individually tailors content to users — was developed in China and cannot legally be sold to a foreign company.
“Just as the United States restricts the export of U.S.-origin technologies (e.g., 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 permit a forced divestment of the recommendation engine.”
Because the sale of the company is infeasible, the company argues, “The effect of the act is therefore a ban.”
Vain attempts to negotiate
The filing also details extensive efforts by TikTok and ByteDance to resolve the government’s concerns without a divestment, including $2 billion spent on “Project Texas,” an initiative that would have housed all data related to American TikTok users in equipment owned and operated by Oracle Corp., a U.S. technology firm.
It also contains the text of a 90-page agreement that the company negotiated with the Department of Justice that was intended to address all of the government’s national security concerns.
The agreement, which was not accepted by the government, took the unusual step of providing the government the ability to unilaterally shut down TikTok’s operations in the U.S. if the company was discovered to be in violation of its promises.
Justice Department comments
The Department of Justice released a statement Thursday in which it promised to defend the law in court, saying that 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 obligates businesses there to share information they possess with the country’s intelligence services if they are asked to do so.
“Alongside others in our intelligence community and in Congress, the Justice Department has consistently warned about the threat of autocratic nations that can weaponize technology — such as the apps and software that run on our phones — to use against us,” the department said.
“This threat is compounded when those autocratic nations require companies under their control to turn over sensitive data to the government in secret.”
Speech advocates in support
Organizations that support the preservation of the right to free speech told VOA they believe TikTok has powerful arguments on its side in the legal battle to come.
“The TikTok ban is a really concerning and misguided attempt to protect Americans’ data privacy and security,” said George Wang, a staff attorney at the Knight First Amendment Institute.
“It’s concerning because it authorizes the government to ban a wildly popular speech platform that’s used by millions of Americans every day, and that poses a serious threat to those Americans’ First Amendment rights,” Wang said. “And it’s misguided because lawmakers simply have better ways to address the privacy and security concerns they’ve raised.”
“I think they have a very strong case that this law is eminently unconstitutional,” said David Greene, the civil liberties director and a staff attorney with the Electronic Frontier Foundation.
Greene pointed out that in the past, Congress has specifically exempted communications services from laws that restrict foreign ownership of companies operating in the U.S.
“It seemed to be anathema to democratic principles to restrict the free flow of information around the world and coming into the country,” Greene said.
