TikTok intensifies efforts against Biden administration amid prospective prohibition
Legal court documents unveil, for the very first time, the text of a draft agreement between TikTok and the American government, an accord TikTok claims would've addressed national security concerns related to the app, but was allegedly discarded in favor of laws TikTok argues violate the First Amendment.
The filing made on Thursday serves as TikTok's initial move in a crucial court case that could potentially decide the app's future, used by 170 million Americans, and the way courts interpret the First Amendment and its impact on online speech. The Department of Justice chose to remain silent on the matter.
TikTok maintains that it's technically, commercially, and legally impossible for its Chinese parent ByteDance to divest from the app before the January 2025 deadline set by the law that President Joe Biden signed in April. The company asserts in its brief that even if such a divestiture were feasible, TikTok in the United States would lose its innovative and personalized content tailoring capabilities, becoming a mere shell. Furthermore, it would become isolated, preventing American users from interacting with the global TikTok community.
The law that TikTok is contesting restricts the type of data-sharing agreements necessary to display international TikTok content to US TikTok users, the company asserts in its filing.
This gravely concerns a group of TikTok content creators who filed a related legal brief on Thursday. This group consists of a football coach, a sexual assault survivor advocate, and a US Air Force veteran, among others. They argue that the challenged law would limit their freedom to express themselves and their First Amendment right to receive others’ speech.
TikTok's focus on the draft agreement with the Committee on Foreign Investment in the United States (CFIUS), a group tasked with assessing the national security implications of foreign investment deals, may prove instrumental to TikTok's case. TikTok contends that the deal's existence suggests a less invasive option that could have achieved the government's objectives without the potential for divestiture or app ban. Whether the Biden administration overlooked this alternative could become an issue in a possible assessment of the law's constitutionality.
TikTok alleges in the filing that the agreement was never signed, despite years of negotiations and numerous meetings and phone calls with US officials. The company claims that, after months of silence since September 2022, CFIUS told TikTok in March 2023 that "senior government officials" demanded divestment without providing an explanation as to why the agreement was insufficient. TikTok requested meetings with senior US officials but received no significant responses, according to the filing.
For years, US officials have expressed concerns about the possibility that the Chinese government might gain access to TikTok's user data through ByteDance's influence. While the Trump administration attempted to ban TikTok via executive order, these attempts were soon challenged in court. Upon signing the legislation in April, Trump retracted his support for the ban, stating it would benefit TikTok's competitor Meta instead.
Independent cybersecurity experts claim the potential for Chinese government access exists based on China's laws, but that it remains a theoretical threat, with many other sources of sensitive data available for China to acquire easily, such as purchasing data on the open market.
American officials have not publicly disclosed evidence of Chinese government access to TikTok user data. However, they warn that the information could be used for propaganda or to identify intelligence targets, and have briefed members of Congress privately about the app's potential risks.
TikTok denies having ever given the Chinese government access to its data and has condemned the confidential congressional briefings as part of a flawed, hurried, and secretive legislative process.
Attached to the company's brief was an appendix containing the full 103-page draft agreement known as Project Texas, TikTok's plan for segregating US user data from its global operation. The draft document includes a clause that allows the US government to temporarily halt or even shut down TikTok's app if TikTok fails to comply with a dozen requirements, like granting inspectors access to the company's source code.
Thursday's filing stated that TikTok has voluntarily spent $2 billion on the implementation of Project Texas so far. Additionally, TikTok included a signed declaration from a third-party expert and former CFIUS official, Christopher Simkins, who stated that, if implemented, TikTok's national security risks would be reduced to a "LOW" level.
