TikTok is in federal court Monday, fighting to survive a January deadline that would see it take down the app in the US.
After several hours of questioning, however, it is difficult to determine which way the court will lean in the high-stakes legal saga that is the most difficult challenge facing TikTok.
Three judges sitting on the U.S. Court of Appeals for the D.C. Circuit appear to be skeptical of TikTok’s claim that free expression trumps Washington’s national security concerns. This is because TikTok’s parent company, ByteDance, is based in China, as opposed to the United States.
At the same time, the judge also pointed out that millions of American TikTok users, and US TikTok operations, have First Amendment protections and that the government shutting down the app could violate those rights.
In April, President Biden sign the law gave TikTok’s parent company, ByteDance, 90 days to find a non-Chinese buyer or be banned nationwide.
At stake: Free speech versus national security
If not repealed, the law will take effect on January 19.
The legal battle in Washington represents the highest-profile battle to date between digital free speech and national security protections.
President Biden’s administration is defending the law that bans TikTok passed by Congress. Former President Trump said on the campaign trail that he now supports the existence of TikTok in the US, regarding efforts to shut down the app while he was in the White House.
For its part, the Justice Department asked the three-judge panel to issue a decision in December. Whatever the decision, it can be appealed to a full panel of federal appeals courts. After that, either party can ask the US Supreme Court to review the decision.
TikTok said it was selected
Lawyers for TikTok have argued that the app is being treated unfairly, saying that forcing the shutdown of a service used by 170 million Americans is a violation of US users’ First Amendment rights.
TikTok lawyer Andrew Pincus stressed that if the government wants to ban TikTok, it must show what is known in legal lingo as “rigorous research,” meaning a strong reason to do so, and must prove that it has exhausted all other means. handle TikTok issues before banning. He said the government failed both tests.
Circuit Judge Sri Srinivasan asked: What if the United States is at war with a country, and that country controls media companies in America. According to TikTok’s logic, the judge said, the US cannot ban the media company without overcoming this high legal hurdle.
“Can’t Congress block enemy ownership of major media sources in the US?” Srinivasan asked.
TikTok lawyer Pincus compares TikTok Politics and Business Insiderboth media owned by German publishers. American authors for these publications still have rights in the US
Being owned by a foreign enemy plays a key role
The big difference, says Srinivasan, is Politics and Business Insider not owned by foreign enemies. TikTok, he said, is owned by ByteDance, a company based in China.
Federal appeals judge Neomi Rao, asked Jeffrey Fisher, a lawyer representing the creators of TikTok if TikTokkers have a First Amendment interest in who owns the platform?
“Absolutely, yes,” replied Fisher. “We still have an interest in working with any foreign publisher that wants to,” he said, citing news organizations such as Al-Jazeera, which is based in Qatar, and the Swedish-owned streaming service Spotify.
Justice Department attorney Daniel Tenny said TikTok is collecting massive amounts of data from millions of Americans who use it.
“The problem is, that same data is very useful to foreign adversaries trying to compromise the United States,” Tenny said.
It’s possible, Tenny asserts, that ByteDance could one day develop an algorithm to boost pro-China videos, or try to turn America against the US in an effort to recruit “intelligence assets,” he said.
Srinivasan shot back that whatever Americans see on the app, they choose to see. Banning the app, he said, would take that immediately.
“The fact that that was denied raises serious First Amendment scrutiny,” Srinivasan said.
Rao said the law favors TikTok, where U.S. citizens and U.S. entities TikTok “engage in protected speech,” the judge said.
The judge acknowledged that whatever the basis for enacting the law, courts will give Congress deference if it has indeed created a legitimate national security threat. The question is whether the security risk is sufficient to justify the restriction of speech.
What the Justice Department actually does against TikTok has been hotly debated in this case.
The Biden administration has publicly argued that TikTok’s links to Chinese tech companies are a matter of national security, but whether the Chinese government has ever accessed American data, or been affected by the app, has been kept secret.
A key part of the Justice Department’s case has been settled, or thrown out, with Biden administration officials claiming that releasing it, even to TikTok’s lawyers, could cause “tremendous damage” to America’s national security.
“We haven’t seen what’s in the confidential post,” TikTok’s lawyer Pincus told the court.
Judge Rao: TikTok is using “weird” reasons to overturn laws
It’s as if TikTok is asking the court to send the law back to Congress to amend, Rao said.
Rao, at one point, said it was a “very strange framework” to try to overturn the law, attacking the legislative authority of the Congress.
“I know Congress doesn’t make laws, but here they do. They actually pass laws. And a lot of your argument is you want us to think of them as an agency.
Pincus replied: “This is an unusual law. This is an unusual law.”
High-stakes hearings have followed for years on TikTok
Since TikTok rose in the pandemic as a video app in America, US lawmakers have been scrutinizing its relationship with China.
TikTok has more than 170 million users in America, or more than half the population. Additionally, with around 90% of the app’s users outside the US, it has gained a foothold worldwide as the premiere social media app for addictive and fast-paced video.
But lawmakers and national security officials in Washington have long feared that the Chinese government could manipulate TikTok feeds to amplify videos that promote China’s view of the world. There are additional concerns about Chinese government spying and misuse of American data.
TikTok, for its part, said it has invested more than $2 billion to restructure the company that isolated its operations in the US, headquartered in the Los Angeles area, from ByteDance, which is based in Beijing. The plan has been dubbed the “Texas Project,” as TikTok is partnering with Austin-based cloud computing company Oracle to monitor the app’s data flow and security.
Court documents in the TikTok lawsuit show that the Biden administration is close to reaching a deal to resolve the issue. A national security agreement between the U.S. and TikTok was made, and executives at the tech company hope that the effort will put lawmakers’ fears to rest.
However, before the deal was finalized, some China hawks in the White House intervened with an ultimatum: Sell the app to non-Chinese companies or outside investor groups, or be banned in the US.
If banned, Apple and Google will be forced by law to remove TikTok from the app store, making TikTok unable to send software updates to the app, and ultimately unusable. By law, doing business with TikTok would be a federal crime.