TikTok is suing the U.S. over ‘obviously unconstitutional’ law that would ban it

TikTok and its Chinese parent company, ByteDance, are suing the U.S. over a law that would ban the popular video-sharing app unless it’s sold to another company, arguing that it relies on vaguely painting it as a threat to national security to get around the First Amendment.

The widely expected lawsuit filed on Tuesday may be setting up what will likely be a protracted legal fight over TikTok’s future in the United States —and could end up before the Supreme Court. If TikTok loses, it says it will be forced to shut down next year. 

The company alleged the law, which U.S. President Joe Biden signed as part of a larger $95 billion US foreign aid package, is so “obviously unconstitutional” that the sponsors of the Protecting Americans From Foreign Adversary Controlled Applications Act are trying to portray the law not as a ban, but as a regulation of TikTok’s ownership.

It’s the first time the U.S. government has singled out a social media company with a potential ban, which free speech advocates note is more common in repressive regimes such as Iran or China. 

“Congress has taken the unprecedented step of expressly singling out and banning TikTok: a vibrant online forum for protected speech and expression used by 170 million Americans to create, share, and view videos over the Internet,” ByteDance said in its suit.

“For the first time in history, 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 one billion people worldwide.”

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The law requires ByteDance to sell the platform within nine months. If a sale is already in progress, the company will get another three months to complete the deal. ByteDance has said it “doesn’t have any plan to sell TikTok.”

But even it wanted to divest, the company would have to get a blessing from Beijing, which previously opposed a forced sale of the platform and has signaled its opposition this time around.

TikTok and ByteDance argued in the lawsuit that is really isn’t being given a choice. 

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

Under the act, TikTok will be forced to shut down by Jan. 19, 2025, according to the lawsuit. The parties argued that they should be protected by the First Amendment’s guarantee of freedom of expression. 

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Shifting China-U.S. relations

The U.S. Justice Department declined to comment on the suit Tuesday. And White House press secretary Karine Jean-Pierre declined to engage on questions about why Biden continues to use TikTok for his political activities, deferring to the campaign. 

ByteDance will first likely ask a court to temporarily block the federal law from going into effect, says Gus Hurwitz, a senior fellow at the University of Pennsylvania’s Carey Law School. And the decision whether to grant such a preliminary injunction could decide the case, he said.

In its absence, he said, “ByteDance is going to need to sell TikTok before this case is ever decided.”

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Whether a court will grant such an injunction remains unclear, says Hurwitz, largely because it requires balancing freedom of speech issues against the administration’s claims of a threat to national security. 

“I think the courts will be very deferential to Congress on these issues,” he said.

The fight over TikTok takes place as U.S.-China relations have shifted to that of intense strategic rivalry, especially in areas such as advanced technologies and data security, which are seen as essential to each country’s economic prowess and national security. 

U.S. lawmakers from both parties, as well as administration and law enforcement officials, have expressed concerns that Chinese authorities could force ByteDance to hand over U.S. user data or sway public opinion by manipulating the algorithm that populates users’ feeds.

Some have also pointed to a Rutgers University study that maintains TikTok content was being amplified or underrepresented based on how it aligns with the interests of the Chinese government, which the company disputes. 

Opponents of the law argue that Chinese authorities — or any nefarious parties — could easily get information on Americans in other ways, including through commercial data brokers that rent or sell personal information.

They note the U.S. government hasn’t provided public evidence that shows TikTok sharing U.S. user information with Chinese authorities, or tinkering with its algorithm for China’s benefit. They also say attempts to ban the app could violate free speech rights in the U.S.

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