Short-form video platform TikTok and its parent company, Chinese tech giant Bytedance, on Monday launched what promises to be an intense, race-to-the-clock legal battle in court for the survival of the popular app on US soil. In a session before a three-judge court, company representatives argued that legislation requiring TikTok to separate from its current owner by January 19 not only violates the constitutional right to freedom of expression; it is also impossible to enforce.
“The law before this court is unprecedented and its effect would be devastating,” said Andrew Pincus, a lawyer for the tech company. “For the first time in history, Congress has targeted an American voice, banned it and 170 million Americans from speaking out,” the number of users TikTok claims it has in the country. Among them are the presidential campaigns of Democrat Kamala Harris and Republican Donald Trump, who are eagerly using the app to communicate their message to younger voting blocs.
The US Congress passed a law in April requiring the platform to put itself up for sale by January 19, with a possible three-month extension if the government decides the platform is making sufficient efforts to find a buyer. Otherwise, it would be banned in the United States, where it is hugely popular and has become a common information-seeking tool, especially among young people. TikTok filed a lawsuit in May challenging the measure, and is demanding that the courts issue an order to halt the law.
The US government claims that the platform poses a national security risk for two reasons. First, it has mountains of data on its American users, especially their viewing and consumption habits, which it would eventually be obliged to share with the Chinese government if it were to demand it. Second, the algorithm it uses, which is the envy of the industry for its tailored suggestions for each user, can be used to spread propaganda, disinformation or some other kind of covert influence.
The app argues that the US government has failed to prove that TikTok poses a national security risk. It also alleges that enforcing the law would violate the sacrosanct right to free speech, enshrined in the First Amendment to the US Constitution.
The Biden administration has not publicly presented evidence showing that the Chinese government was able to access data on American citizens held by TikTok, and ByteDance says it would refuse to hand it over if Beijing demanded it. Lawmakers on Capitol Hill have received closed-door briefings.
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In a legal brief filed in June, the platform and its parent company also argued that if they were to split up, TikTok would lose the attributes that have made it so popular and would, in practice, be doomed. The sale, they argued, “is simply not possible.” “Neither commercially, nor technologically, nor legally.”
“Even if the separation were possible, TikTok in the United States wanted to be reduced to a mere shell, detached from the innovative technology that tailors content to each user” individually, ByteDance and its platform argued. The application, they explained, “would become an island, where Americans would not be able to exchange views with the global TikTok community.” A situation similar to that affecting users in China itself, where the local version of the application, Douyin, lacks access outside the so-called “Great Firewall” imposed by Chinese internet censorship.
The Justice Department, ByteDance and TikTok have all asked the courts to issue a decision by Dec. 6. That date would give the Supreme Court time to rule before the law goes into effect if, as expected, the losing party files an appeal.
The US government says the law is not intended to force the app to close, but rather to sell it, in order to protect the use that the platform owners can make of the data of millions of its citizens. “What we are focused on when implementing this law now is working towards divestment in a manner consistent with the intent of the law and with the national security concerns that led to it being passed,” said National Security Adviser Jake Sullivan in a press conference immediately after the measure was enacted in April.
