TikTok faces a 15-minute battle to safeguard its existence
This week, TikTok has 15 pivotal minutes to persuade a federal appeals court not to support a potential US ban of the popular social media app, currently utilized by 170 million Americans.
These minutes might prove to be TikTok's most critical since its inception in the US. The company is battling against a law, signed into effect by President Joe Biden, which contains provisions that could instigate a ban as early as January.
The law enacted by Biden aims to ban TikTok from individual devices in the US, unless its Chinese parent company, ByteDance, swiftly sells TikTok to another entity, likely causing fundamental changes to the app as we have come to know it.
As the ban deadline looms, TikTok and ByteDance have pursued legal action, requesting the law to be overturned and labeled unconstitutional based on the First Amendment.
Regrettably, TikTok will not be granted a full trial to present its case for maintaining its existence in its current form.
The law in question necessitates any legal challenge to circumvent the federal district court and proceed directly to the US Court of Appeals for the District of Columbia Circuit within a limited timeframe. A panel of three judges will deliberate the case and hand down a decision, presumably within a few weeks, determining whether the law is constitutional.
Oral arguments scheduled for Monday
On Monday at 9:30 am ET, the parties will present their arguments in an oral hearing. TikTok will have a few brief moments to leave an impact. But, it won't be alone: A group of TikTok creators also suing the Biden administration will speak next, devoting 10 minutes to their statement. The Biden administration will wrap up the proceedings with a 25-minute argument.
Each party involved in the dispute will have approximately half an hour to articulate their reasons for why the court should reject the law and prevent it from being enforced. Department of Justice attorneys will argue for the necessity of a potential TikTok ban or forced sale, citing concerns for American users' safety.
The panel of judges hearing the case, led by Chief Judge Sri Srinivasan, will include Judge Neomi Rao and Judge Douglas Ginsburg.
The primary issue facing Monday's panel: Is the theoretical risk of Chinese espionage through TikTok sufficient to warrant a federal law that may compromise Americans' constitutional liberties of free speech?
It remains unclear when the court will produce a decision on whether to halt the legislation. However, the law sets a deadline of January 19 for TikTok, which suggests that the court may render its verdict before then.
Anti-China sentiment and TikTok
With remarkable swiftness, the legislation sailed through Congress this spring. It represents the US's reaction to fears that TikTok's connections to China could grant the Chinese government access to American users' app data. Contents such as which videos they have watched, liked, shared, or searched for.
The bill symbolizes bipartisan opposition to China, yet, for TikTok's supporters—including some of its most prominent content creators—the law appears to be motivated by racism and anti-China sentiment. They argue it disregards other, potentially more sensitive, sources of data freely available on commercial marketplaces.
The outcome of the case will not solely determine the future of TikTok in the US; it could also influence how courts interpret the First Amendment with respect to digital speech and online platforms overall.
TikTok asserts that the potential ban violates the First Amendment because it restricts the freedom of expression for US users and the freedom to access information on the platform. The company further argues that the law is unconstitutionally stringent, given that the government had alternative means to address concerns about TikTok's links to China.
Court documents reveal that TikTok and US national security officials had negotiated a proposed agreement to address the security concerns. Part of this agreement allowed the US government to shut down TikTok if it breached the terms. TikTok claims that US officials abruptly cancelled the agreement without explanation. (The US government has described this plan in court filings as "inadequate" due to concerns over detecting violations.)
Furthermore, TikTok asserts that it is technically impossible to separate the app from ByteDance. The company argues that the app's software code, built by ByteDance, cannot be easily transferred to another company. Moreover, TikTok claims that the Chinese government will likely not allow the recommendation algorithm—the application's secret sauce and core source of its appeal—to be sold to a non-Chinese company.
Last year, the Chinese government stated that it would "forcefully oppose" the potential sale of TikTok from ByteDance, following new export controls that affected the transfer of certain software algorithms.
TikTok has portrayed the US law as an unwarranted grab of congressional power that endangers all Americans' free speech rights.
"If Congress can do this," the company wrote in its filings, "it can circumvent the First Amendment by invoking national security and ordering the publisher of any individual newspaper or website to sell to avoid being shut down."
TikTok disputes that the US government has provided concrete proof to suggest that the Chinese government has leveraged user data from their platform to justify any legislation. They argue that merely expressed concerns from congressional members and a committee report about the possibility of TikTok being misused lack solid evidence, especially given their long-standing presence in the US since 2017.
The US government, however, contends that lawmakers are entitled to take action, even if the threats haven't fully materialized or been detected yet.
The Chinese government allegedly has the motivation and capability to pressure ByteDance to disclose TikTok user data, according to the Biden administration. The information could potentially be beneficial for intelligence purposes or for disseminating misinformation through manipulative campaigns.
On the other hand, the United States routinely requests user data from social media companies. However, there are protections, like limits on what intelligence officials can do with data on US citizens or court orders required for domestic law enforcement to obtain user data, which tech companies often challenge.
The Justice Department cited in a court brief that TikTok's Chinese parent company and recommendation algorithm pose a risk, as a foreign adversary could potentially exploit TikTok's influence to serve their own interests at the expense of US national security.
The US government also maintains that the law isn't a ban, but rather a provision allowing TikTok to avoid it by securing a new owner within six months.
Independent cybersecurity experts have expressed reservations about the possibility of Chinese spying via TikTok, although the evidence remains inconclusive.
China's intelligence laws require companies operating within the country to assist with the nation's intelligence objectives. While TikTok doesn't operate in China, ByteDance, its parent company, does, making it subject to China's laws and giving the Chinese government influence over ByteDance's Chinese subsidiary, as it holds a board seat.
TikTok in the Limelight
The case has garnered significant attention, resulting in friend-of-the-court briefs from more than a dozen US states, the House Select Committee on China, several former national security officials, business and civil rights groups, and a former Federal Communications Commission chairman.
The Digital Rights Coalition argued in a filing that the law fosters suspicions of political bias and motivation, as it unfairly targets TikTok based on its foreign ownership while other major social media platforms raise comparable privacy and content moderation issues.
On the other hand, former national security officials argued that the massive accumulation of TikTok user data, combined with other data collected through hacks and leaks, could represent a significant intelligence risk for the US.
The group, which includes former National Cyber Director Chris Inglis, stated that the Chinese government could utilize this large pool of sensitive data to power advanced artificial intelligence capabilities, attacking Americans for intelligence collection, conducting sophisticated electronic and human intelligence operations, and potentially even scheming to destabilize the US politically and economically.
The case against TikTok's potential ban is not just about the app itself; TikTok and its supporters argue that the law could set a dangerous precedent for restricting digital speech and online platforms based on foreign ownership.
Given the panel's deliberation on whether the theoretical risk of Chinese espionage through TikTok justifies potential compromises of Americans' constitutional liberties, tech companies may closely watch the court's decision to gauge how future legal challenges regarding data privacy and national security might unfold.
