TikTok and its Chinese parent company filed a lawsuit on Tuesday against a new American law. This law would ban the popular video-sharing app in the U.S. unless it’s sold to an approved buyer. They argue that the law unfairly targets their platform and represents an unprecedented attack on free speech.
ByteDance’s lawsuit
ByteDance’s lawsuit argues that the new law unfairly portrays its ownership of TikTok as a national security risk, despite no evidence supporting this claim. The company believes this portrayal is a tactic to sidestep First Amendment protections. Additionally, ByteDance claims that the law is so clearly unconstitutional that its supporters are now framing it as a means to regulate TikTok’s ownership.
“For the first time in history, Congress has enacted a law that subjects a single, named speech platform to a permanent, nationwide ban, and bars every American from participating in a unique online community with more than 1 billion people worldwide,” ByteDance asserts in the lawsuit filed in a Washington appeals court.
The law signed by U.S. Government
U.S. President Joe Biden signed a law as part of a foreign aid package, marking the first time the U.S. has targeted a social media company for a potential ban. Free speech advocates argue that such actions are typically associated with repressive regimes like Iran and China.
The lawsuit adds to an ongoing legal battle over TikTok’s future in the United States, which may eventually reach the Supreme Court. TikTok claims that if it loses, it will have to shut down next year.
The law mandates ByteDance to sell TikTok to a U.S.-approved buyer within nine months, with an additional three months if a sale is already underway. ByteDance has stated it does not intend to sell TikTok, but even if it wanted to, it would require approval from Beijing. The Chinese government has indicated it would not allow ByteDance to include the algorithm crucial to TikTok’s success in the U.S., according to the lawsuit.
What is the counter argument from TikTok?
TikTok and ByteDance argue that the new law effectively forces them to shut down by January 19 of the following year, as continuing to operate in the U.S. would be commercially, technologically, and legally unviable. They contend that divesting the U.S. TikTok platform as a separate entity from the global TikTok, which has 1 billion users primarily outside the U.S., is impossible. They argue that a U.S.-only TikTok would be isolated from the rest of the world.
The lawsuit also highlights the challenges of divestment, pointing out that the law requires all of TikTok’s software code to be separated from ByteDance to eliminate any operational ties between the Chinese company and the new U.S. app, which is deemed a technological impossibility.
The companies claim that their right to freedom of expression, protected by the First Amendment, should shield them. They are asking for a court ruling that declares any action against them as unconstitutional.
What are the officials saying?
On Tuesday, the Justice Department chose not to comment on the lawsuit. White House press secretary Karine Jean-Pierre also avoided discussing why the president still uses TikTok for political purposes, instead referring questions to the campaign.
Representative Raja Krishnamoorthi, a Democrat from Illinois and the ranking member of the House Select Committee on the Chinese Communist Party, released a statement on Tuesday supporting the new law.
“This is the only way to address the national security threat posed by ByteDance’s ownership of apps like TikTok. Instead of continuing its deceptive tactics, it’s time for ByteDance to start the divestment process,” he said.
Gus Hurwitz, a senior fellow at the University of Pennsylvania’s Carey Law School, who is not involved in the case, stated that ByteDance will likely first seek a court order to temporarily block the federal law from taking effect. This initial decision on whether to grant a preliminary injunction could be crucial, as without it, ByteDance would have to sell TikTok before the broader case could be decided.
Hurwitz noted that it is unclear whether a court will grant such an injunction, as it involves balancing free speech concerns with the Biden administration’s national security claims. He believes that the courts will likely defer to Congress on these issues.
Controversy
The TikTok controversy is part of a larger rivalry between the U.S. and China, especially in advanced technologies and data security, which are crucial for both countries’ economic strength and national security.
Many U.S. lawmakers, officials, and experts worry that Chinese authorities could compel ByteDance, TikTok’s parent company, to give them access to American users’ data or influence public opinion by manipulating the app’s algorithm. Some cite a study from Rutgers University that suggests TikTok may be biased in favor of or against certain content based on China’s interests, a claim that TikTok denies.
Critics of the concerns argue that if Chinese authorities or other malicious actors wanted American information, they could obtain it through other means, such as commercial data brokers. They also note that there is no public evidence showing that TikTok has shared U.S. user data with China or manipulated its algorithm for China’s benefit.
“Data collection by apps has real consequences for all of our privacy,” said Patrick Toomey, deputy director of the ACLU’s National Security Project. “But banning one social media platform used by millions of people around the world is not the solution. Instead, we need Congress to pass laws that protect our privacy in the first place.”
Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, expects TikTok’s lawsuit to succeed.
“The First Amendment means the government can’t restrict Americans’ access to ideas, information, or media from abroad without a very good reason for it — and no such reason exists here,” Jaffer said in a statement.
While TikTok has successfully defended against First Amendment challenges in the past, the outcome of the current lawsuit is uncertain.
“The bipartisan nature of this federal law may make judges more likely to defer to a Congressional determination that the company poses a national security risk,” said Gautam Hans, a law professor and associate director of the First Amendment Clinic at Cornell University. “Without public discussion of what exactly the risks are, however, it’s difficult to determine why the courts should validate such an unprecedented law.”
