A legal faceoff between TikTok and the U.S. government over a law that could ban the social media platform in the country is pitting two major principles against each other: national security versus free speech.
In a more than two-hour appearance before a federal appeals court in Washington earlier this week, TikTok argued the U.S. law that forces the platform to sever ties with its China-based parent company ByteDance or face a ban by mid-January is unconstitutional under the First Amendment.
“The law before this court is unprecedented and its effect would be staggering,” Andrew Pincus, the lawyer arguing for TikTok and ByteDance, told the three-judge panel on Monday.
He warned that a ban would violate the free-speech rights of not only an American entity, but also the 170 million Americans who use the platform — including content creators and businesses that rely on TikTok for their livelihoods.
Daniel Tenny, an attorney for the U.S. Justice Department, countered the government is concerned that TikTok’s Chinese ownership makes the valuable user data it collects susceptible to falling into the hands of the Chinese government through coercion. While many other companies collect and share data for targeted marketing and tailoring users’ experiences, he argued TikTok is a unique case.
“The problem is that same data is extremely valuable to a foreign adversary trying to compromise the security of the United States,” he said.
The judges will now have to weigh a decision in the case, which will likely take weeks. TikTok and the Justice Department have asked for a ruling by Dec. 6, which could allow the U.S. Supreme Court to consider any appeal before the Jan. 19 deadline for ByteDance to sell TikTok’s U.S. assets.
The question now is which argument will win out — and experts aren’t sure that TikTok will be successful.
What’s fuelling the TikTok case?
“You have these two constitutional principles butting up against each other … and I don’t think you can necessarily say that one always trumps the other,” said Alex Bolton, the program manager of the University of Washington’s Tech Policy Lab that studies the intersection of law, politics, cybersecurity and other tech issues.
That being said, he added, “there is a general deference towards Congress when Congress and the president (are) on the same side of this” issue.
U.S. President Joe Biden signed the bill into law in April after it was approved by overwhelming majorities in the U.S. House of Representatives and Senate in March.
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Under the law, Biden could extend the January deadline by three months if he certifies ByteDance is making significant progress toward a sale. But ByteDance has made clear it has no plans to divest, and TikTok says it has taken steps to protect American user data.
Both sides faced tough questions from the judges in Monday’s court hearing.
At one point, Chief Judge Sri Srinivasan said efforts to stem content manipulation through government action sets off alarm bells and would impact people who receive speech on TikTok.
Tenny, the attorney for the DOJ, responded by saying the law doesn’t target TikTok users or creators and that any impact on them is only indirect.
But the questions for TikTok appeared to be much more skeptical, “even snarky at times,” said University of Minnesota law professor Alan Rozenshtein — which he said suggests the company’s arguments weren’t persuasive.
“When one side gets all the attention, it means it’s either really favoured or really disfavoured,” he said. “In this case, I think it’s the latter.”
Part of the problem TikTok faces, Rozenshtein said, is that while the First Amendment enshrines the ability to speak freely without government obstruction, “ideally that’s allowed to occur in a place that’s honest and won’t be manipulated.”
The judges pressed Pincus, the TikTok and ByteDance lawyer, on whether he believed the government has any leeway in protecting national security by curtailing foreign-owned media companies, particularly if that foreign nation is an adversary of the U.S.
Srinivasan raised the hypothetical situation of the U.S. being at war with China, and whether Congress in that situation could bar foreign ownership of major media outlets operating in America. Pincus said Congress probably would be able to do so, but noted that lawmakers did not include that justification in the current law.
How serious is the threat?
TikTok has also argued the government has not sufficiently proven that the platform’s algorithm can be manipulated to China’s advantage, which the Justice Department said can be difficult to detect, or that the app poses a significant threat to users’ privacy.
Some of the information in the government’s court filings includes significant redactions, however, suggesting it may include classified information about China.
Rozenshtein said because TikTok’s lawsuit is a civil case, the government has no legal obligation to share that classified information with the company.
In one of the redacted statements submitted in late July, the Justice Department claimed TikTok took direction from the Chinese government about content on its platform, without disclosing additional details about when or why those incidents occurred.
Casey Blackburn, a senior U.S. intelligence official, wrote in a legal statement that ByteDance and TikTok “have taken action in response” to Chinese government demands “to censor content outside of China.”
Though the intelligence community had “no information” that this has happened on the platform operated by TikTok in the U.S., Blackburn said it may occur.
Bolton said other social media companies may also be watching the case closely for potential implications for their industry.
A U.S. law, Section 230, shields social media platforms from liability for publishing content from independent users, making them different from traditional media publishers like newspapers.
TikTok’s argument for its own free speech rights could put that immunity at risk if the judges side with the company, he said.
“It depends on whose First Amendment rights they’re protecting,” Bolton said.
“It seems like TikTok is going scorched earth a little bit in there to do whatever it can to protect its interests…. But in doing that, it could be opening itself up to other risks.”
What are TikTok users saying?
The judges on Monday also heard from a lawyer representing content creators who say they will lose money and business if TikTok is banned, and that the U.S. law would also violate their free speech.
The creators signed on to the government’s lawsuit, which is separate from another case filed by creators against the law.
But experts say the creators’ free speech argument loses potency when there are other platforms available, despite creators stressing that TikTok offers unique capabilities that have boosted their businesses that other platforms fail to match.
“The more savvy TikTok creators have been diversifying on other platforms for years in anticipation of this case,” Rozenshtein said. “People have the right to choose which platform to use, but the availability of other platforms makes the stakes less high.”
Other companies and designers could also create an algorithm that matches — or even one day replicates — the one that TikTok and its supporters insist make it special, Bolton said.
— with files from The Associated Press and Reuters
