TikTok was in federal court Monday, fighting for its survival as a January deadline looms that could put the app out of business in the U.S.
After several hours of questioning, however, it was difficult to gauge which way the court is leaning in the high-stakes legal saga that is the most dire-yet challenge TikTok has faced.
A panel of three judges from the U.S. Court of Appeals for the D.C. Circuit appeared dubious of TikTok’s plea that free expression surpasses the national security concerns of Washington. That’s because TikTok’s parent company, ByteDance, is based in China, an adversary of the United States.
At the same time, the judges also pointed out that millions of American TikTok users, and TikTok’s U.S. operations, do have First Amendment protections and the government shutting down the app could violate those rights.
In April, President Biden signed a law giving TikTok’s parent company, ByteDance, 90 days to find a non-Chinese buyer or be banned nationwide.
At stake: Free speech versus national security
Unless overturned, the law is set to take effect on Jan 19. If this case drags on, an extension appears likely.
The legal battle in Washington showcases the most high-profile fight to date between digital free speech and protection of national security.
President Biden’s administration is defending the law banning TikTok that Congress passed. Former President Trump has said on the campaign trail that he now supports TikTok’s existence in the U.S., an about-face from his efforts to shut down the app when he was in the White House.
For its part, the Justice Department has asked that the three-judge panel issue a ruling by December. Whatever the ruling, it can be appealed to a full-panel of the federal appeals court. After that, either side can ask the U.S. Supreme Court to review the decision.
TikTok says it’s being singled out
Lawyers for TikTok argue the app is being unfairly singled out, claiming that forcing the shut-down of a service used by 170 million Americans is a gross violation of the First Amendment rights of U.S. users.
TikTok's lawyer Andrew Pincus argued that if the government wants to ban TikTok, it has to show what's known in legal lingo as "strict scrutiny," which means a compelling reason for doing so, and it must prove that it has exhausted all other ways of dealing with TikTok’s issues before banning. He said the government has failed both tests.
Circuit Judge Sri Srinivasan asked: What if the United States is at war with a country, and that country controls a media company in America. By TikTok’s logic, the judge said, the U.S. could not ban the media company without clearing this high legal hurdle.
“Congress can’t bar the enemy’s ownership of a major media source in the U.S.?” Srinivasan asked.
TikTok lawyer Pincus compared TikTok to Politico and Business Insider, two media outlets owned by a German publisher. American writers for those publications still have rights in the U.S.
Being owned by a foreign adversary is playing a key role
A big difference, said Srinivasan, is that Politico and Business Insider are not owned by a foreign adversary. TikTok, he said, is owned by ByteDance, a company based in China.
Federal appeals judge Neomi Rao asked Jeffrey Fisher, a lawyer representing TikTok creators, if TikTokkers have a First Amendment interest in who exactly owns the platform?
“Absolutely, yes,” Fisher replied. “We still have an interest in working with whatever foreign publisher we want,” he said, citing news organizations, like Al-Jazeera, which is based in Qatar, and Swedish-owned streaming service Spotify.
Department of Justice lawyer Daniel Tenny said TikTok compiles vast troves of data from the millions of Americans who use it.
“The problem is, the same data is extremely valuable to a foreign adversary trying to compromise the United States,” Tenny said.
It is possible, Tenny insisted, that ByteDance one day manipulates its algorithm to boost pro-China videos, or try to turn Americans against the U.S. in an attempt to recruit “an intelligence asset,” he said.
Srinivasan shot back that whatever Americns are seeing on the app, they are choosing to view it. Banning the app, he said, would take that right away.
“The fact that that’s being denied subjects this to serious First Amendment scrutiny,” Srinivasan said.
Rao said the law singles out TikTok, where U.S. citizens and TikTok’s U.S. entity is “engaged in protected speech,” the judge said.
Judges acknowledged that whatever the basis was for passing the law, the court will show deference to Congress that it has indeed established a legitimate national security threat. The question is whether that security risk is enough to justify speech restrictions.
What exactly the Department of Justice has against TikTok has been hotly debated in this case.
The Biden administration has outlined in broad terms that TikTok’s link to a Chinese tech company is a national security concern, but whether the Chinese government has ever accessed Americans’ data, or influenced the app, has been left secret.
Significant portions of the Department of Justice’s case have been redacted, or blacked out, with Biden administration officials claiming that releasing it, even to TikTok’s lawyers, could pose “exceptionally grave damage” to America’s national security.
"We haven't seen what's in the confidential secret submissions," TikTok lawyer Pincus told the court.
Judge Rao: TikTok uses “strange” rationale to overturn law
It’s almost as if TikTok is asking the court to send the law back to Congress to be amended, Rao said.
Rao, at one point, said that was a “very strange framework” for trying to overturn the law, by attacking Congress’ legislative authority.
“I know Congress doesn’t legislate all the time, but here they did. They actually passed a law. And many of your arguments want us to treat them like they’re an agency.”
Pincus replied: “It’s an unusual law, though. It’s a pretty unusual law.”
High-stakes hearing follows years of scrutiny on TikTok
Since TikTok’s rise in the pandemic as the go-to video app in America, U.S. lawmakers have been scrutinizing its ties to China.
TikTok boasts of more than 170 million users in America, or more than half of the population. Also, some 90% of the app’s users are outside of the U.S., having gained a foothold globally as the premiere social media app for highly addictive, fast-paced videos.
But lawmakers and national security officials in Washington have long feared that the Chinese government could manipulate TikTok’s feed to amplify videos that promote China’s view of the world. There are additional worries over Chinese government spying and the misuse of Americans’ data.
TikTok, for its part, says it has invested more than $2 billion on a company restructuring that isolates the app’s U.S. operations, headquartered in the Los Angeles area, from ByteDance, which is based in Beijing. The plan has been dubbed “Project Texas,” since TikTok partnered with Austin-based cloud computing firm Oracle to supervise the flow of data and the security of the app.
Court documents in TikTok’s lawsuit show that the Biden administration nearly reached a deal to resolve the issues. A national security agreement between the U.S. and TikTok was drawn up, and executives at the tech company were hopeful its efforts would alloy lawmakers’ fears.
Before the deal could be finalized, however, a number of China hawks in the White House intervened with an ultimatum: Sell the app to a non-Chinese company or group of outside investors, or be banned in the U.S.
If banned, Apple and Google would be forced by law to remove TikTok from the app stores, making it impossible for TikTok to send software updates to the app, eventually rendering it inoperable. Under the law, doing business with TikTok would become a federal crime.
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