TikTok has filed a lawsuit to block a US law that could lead to a nationwide ban

 

TikTok has filed a lawsuit to block a US law that could lead to a nationwide ban on the app, following through on legal threats made after President Joe Biden signed the legislation last month. The court challenge sets up a historic legal battle 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 are high for TikTok, as a loss could result in a ban 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 with the US Court of Appeals for the District of Columbia Circuit, TikTok and ByteDance argue that the law is unconstitutional because it stifles Americans' speech and prevents them from accessing lawful information.

The petition claims that the US government has taken the unprecedented step of singling out and banning a single speech platform, and that this exercise of congressional power is unconstitutional. TikTok argues that the law is a form of censorship that would prevent Americans from participating in a unique online community with over 1 billion people worldwide.

The White House has referred questions about TikTok's legal challenge to the Justice Department, which has not yet responded 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.

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. However, these 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 to TikTok data, and US lawmakers have received classified briefings behind closed doors. However, some lawmakers have expressed mixed reactions to the briefings, 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.

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. However, TikTok and ByteDance argue that the national security fears at the heart of the TikTok legislation are "speculative and analytically flawed" and 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, as the Supreme Court has held that the US government cannot prohibit Americans from receiving foreign propaganda if they so choose. 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.

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, but 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.

The outcome of the TikTok case is likely to have far-reaching consequences for how the US government regulates technology and other foreign speech. As Evelyn Douek, an assistant law professor at Stanford University, 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. 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."