TikTok sues to block prospective US app ban

By Brian Fung, CNN

Washington (CNN) — TikTok sued Tuesday to block a US law that could force a nationwide ban of the popular app, following through on legal threats the company issued after President Joe Biden signed the legislation last month.

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

The stakes of the case are 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 at the US Court of Appeals for the District of Columbia Circuit, TikTok and Bytedance allege the law is unconstitutional because it stifles Americans’ speech and prevents them from accessing lawful information.

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

“For the first time in history,” the petition said, “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.”

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

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

Debate over data sharing

TikTok has strongly denied that it has ever given Chinese government officials access to US user data and says it has taken steps to protect that information by hosting the data on servers owned by US tech giant Oracle.

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

But those assurances have not eased US officials’ concerns, which include fears that China could use TikTok’s 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 Chinese government access of TikTok data to date; US lawmakers have received classified briefings by national security officials behind closed doors, but they have not declassified any materials from those meetings.

Reactions to the briefings have been mixed, with one House Republican saying there was “no specific information … that was well-founded evidence” and one House Democrat saying the issue comes down to a judgment call about curbing “malign influence” from China.

But Virginia Democratic Sen. Mark Warner, an advocate for the TikTok legislation, said in remarks on the Senate floor in April that the briefings provided critical insight into the risk TikTok poses.

“Many Americans, particularly young Americans, are rightfully skeptical” of the legislation clamping down on TikTok, Warner said in his remarks. “At the end of the day, they’ve not seen what Congress has seen. They’ve not been in the classified briefings that Congress has held, which have delved into more deeply some of the threat posed by the foreign control of TikTok.”

In March, those fears culminated in legislation giving TikTok roughly 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 law at issue as a forced divestiture of TikTok, not an outright app ban. TikTok has insisted, however, that a ban would be the only probable outcome if the law is upheld.

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

First Amendment implications

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

First Amendment scholars say TikTok’s claims have some merit. The Supreme Court has held, for instance, that the US government cannot prohibit Americans from receiving foreign propaganda if they so choose. Underscoring the point, legislation known as the Berman amendment also forbids US presidents from blocking the free flow of media from foreign countries, even those considered hostile to the United States.

“National security claims should not trump the First Amendment,” said Evelyn Douek, an assistant law professor at Stanford University who studies online platform regulations. “Otherwise, it would 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 of the [Supreme] Court neglecting these principles, especially in the context of counterterrorism and foreign speech.”

TikTok notched some early court victories last year as several US states tried to clamp down on the app, foreshadowing the battle to come over online speech. In Montana, the only state to have passed its own TikTok ban affecting personal devices, a federal judge temporarily blocked the legislation — saying the state law unconstitutionally “harmed [users’] First Amendment rights and cut off a stream of income on which many rely.”

The bipartisan nature of the law Biden signed might convince the courts of the seriousness of the national security concerns around TikTok, said Gautam Hans, associate director of the First Amendment Clinic at Cornell University. Still, Hans said, “without public discussion of what exactly the risks are … it’s difficult to determine why the courts should validate such an unprecedented law.”

In addition to potentially infringing on US TikTok users’ speech rights, the federal law TikTok is challenging also implicates the constitutional rights of Apple and Google, whose app stores would be prohibited from carrying TikTok if a ban went into effect.

“This raises concerns about potentially unconstitutional government intrusion into the decisions of these platforms regarding what content to host,” wrote Jennifer Huddleston, a research fellow at the libertarian Cato Institute, in an op-ed last month. “Further, 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 authority that governments have to manage their own property. Internationally, TikTok has been banned on government devices in Canada, the United Kingdom and at the European Commission. The app has been subject to a complete ban in the entire country of India since 2020.

Some US officials have been trying to ban TikTok from the United States since 2020, when former President Donald Trump moved to block the app by executive order. (Trump has since reversed his position, saying a TikTok ban would only help Meta, a company Trump blames for his 2020 election defeat.)

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

“It’s really important to think of this not in terms of just TikTok, but in terms of all foreign platforms in the future,” Douek said. “In a globalized world, this issue is going to come up again and again. And if the government is handed the power to simply ban a platform based on what seems at this stage mere concerns about potential for future harm, rather than actual clear and present dangers, that would be extremely worrying.”

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