TikTok is suing to block a potential US ban on the app

TikTok is suing to block a potential US ban on the app

TikTok sued Tuesday to block a US law that could force a nationwide ban on the popular app, following legal threats the company issued after President Joe Biden signed the law into law last month.

The court challenge sets up a historic legal battle, which will determine whether US security concerns over TikTok’s links to China can override the First Amendment rights of TikTok’s 170 million US users.

The case bet is existential for TikTok. If it loses, TikTok could be banned from US app stores unless its Chinese parent company, ByteDance, sells the app to a non-Chinese entity by mid-January 2025.

In its petition filed Tuesday in the US Court of Appeals for the District of Columbia Circuit, TikTok and Bytedance claim the law is unconstitutional because it restricts Americans’ speech and prevents them from accessing legitimate information.

The petition claims the US government “has taken the unprecedented step of clearly singling out and banning” short video apps in an unconstitutional exercise of congressional power.

“For the first time in history,” the petition said, “Congress has enacted legislation that imposes a single platform of named speech on a permanent nationwide ban, and prevents every American from participating in a unique online community of more than 1 billion people all over the world.”

The White House referred questions about TikTok’s legal challenge to the Justice Department, which did not immediately respond to a request for comment.

The lawsuit follows years of US allegations that TikTok’s relationship with China could potentially expose Americans’ personal information to the Chinese government.

The debate over data sharing
TikTok has vehemently denied that it ever gave Chinese government officials access to US user data and said it had taken steps to protect that information by hosting the data on servers owned by US tech giant Oracle.

The move is part of a 90-page draft agreement before a government panel known as the Committee on Foreign Investment in the United States, a multi-agency body that has been reviewing TikTok’s US operations since 2019, the petition said. The same draft agreement also includes the ability for the US government to shut down TikTok if it or ByteDance “breach certain obligations under the agreement,” the petition said.

But the assurances have not allayed the concerns of US officials, including fears that China could use TikTok data to identify intelligence targets, spread propaganda or engage in other forms of covert influence.

The US government has not publicly presented any concrete evidence showing the Chinese government’s access to TikTok data to date; US lawmakers have received confidential briefings by national security officials behind closed doors, but they have not disclosed any material from the meeting.

Reaction to the briefing was mixed, with one state Assemblyman saying “there is no specific information … that is evidence-based” and one House Democrat saying the issue boils down to a judgment call about curbing “malign influence” from China.

But Virginia Democratic Sen. Mark Warner, an advocate for TikTok legislation, said in a statement on the Senate floor in April that the briefing provided a critical picture of the risks TikTok poses.

“Many Americans, especially young Americans, are naturally skeptical” of the law restricting TikTok, Warner said in his speech. “At the end of the day, they didn’t see what Congress saw. They didn’t attend the classified briefings held by Congress, which delved deeper into some of the threats posed by foreign control of TikTok.”

In March, those concerns came to a head with legislation that gave TikTok about six months to sell or face a US ban. Passed by the House, it stalled in the Senate before an updated version of the bill was fast-tracked and attached to a major foreign aid package benefiting Israel and Ukraine.

US policymakers have described the disputed law as a forced takedown of TikTok, not an outright ban on the app. TikTok has insisted, however, that a ban would be the only likely outcome if the law is upheld.

“The ‘revocation’ demanded by the Act to allow TikTok to continue operating in the United States is impossible,” Tuesday’s petition said, “not commercially, not technologically, not legally.”

First Amendment Implications
TikTok and ByteDance called the national security concerns at the heart of the TikTok legislation “speculative and analytically flawed,” adding in the petition that the bill’s swift passage reflected how its congressional authors relied on “speculation, not ‘evidence,’ as the First Amendment .need,” to make their case.

First Amendment scholars say TikTok’s claims have some merit. The Supreme Court has ruled, for example, that the US government cannot prohibit Americans from receiving foreign propaganda if they so choose. Emphasizing that, legislation known as the Berman amendment also prohibits the US president from restricting the free flow of media from foreign countries, even those deemed hostile to the United States.

“National security claims should not trump the First Amendment,” said Evelyn Douek, an assistant professor of law at Stanford University who studies the regulation of online platforms. “Otherwise, it will make the Constitution a paper tiger. At the very least, the government should be forced to provide evidence for its claims. That said, there is precedent for the [Supreme] Court to ignore these principles, particularly in the context of counter-terrorism and foreign speech.”

TikTok scored some early court victories last year when several US states tried to clamp down on the app, hinting at a battle over online speech. In Montana, the only state to pass its own TikTok ban that affects personal devices, a federal judge temporarily blocked the law — saying the state law unconstitutionally “impairs [users’] First Amendment rights and cuts off substantial revenue streams depend on it. .”

The bipartisan nature of the legislation Biden signed may convince the court how serious the national security concerns surrounding TikTok are, said Gautam Hans, associate director of the First Amendment Clinic at Cornell University. Still, Hans said, “without a public discussion of what exactly the risks are … it’s hard to determine why the court should uphold an unprecedented law.”

In addition to potentially violating the free speech rights of US TikTok users, the federal law TikTok is challenging also implicates the constitutional rights of Apple and Google, whose app stores would be barred from carrying TikTok if the ban goes into effect.

“This raises concerns about potentially unconstitutional government intrusion into these platforms’ decisions about what content to host,” wrote Jennifer Huddleston, a researcher at the libertarian Cato Institute, in an op-ed last month. “Furthermore, it could set a dangerous precedent of government intervention in the online space that many would find anathema in the offline space.”

The US government and more than half of US states have restricted TikTok from government devices, however, reflecting the government’s power to manage their own property. Internationally, TikTok has been banned on government devices in Canada, the United Kingdom and in the European Commission. This app has been completely banned across India since 2020.

Several US officials have tried to ban TikTok from the United States since 2020, when former President Donald Trump moved to block the app through an executive order. (Trump has reversed his position, saying banning TikTok would only help Meta, a company Trump blames for his loss in the 2020 election.)

The decision in the TikTok case is likely to have far-reaching implications for how the US government regulates technology and other foreign speech, Douek said.

“It is very important to think about this not only in terms of TikTok, but in terms of all foreign platforms in the future,” Douek said. “In a globalized world, this issue will arise again and again. And if the government is given the power to simply ban platforms based on what appears at this stage to be concerns about potential future harm, rather than real and present harm, that would be very worrying.