(States Newsroom) — TikTok and its Chinese parent company on Tuesday challenged a recently enacted federal law banning the short-form video platform from the United States if it is not sold to a non-Chinese owner.
TikTok Inc., the U.S. company that operates the popular social media service, and ByteDance, its parent company founded by Chinese entrepreneurs, filed suit in the U.S. Court of Appeals for the District of Columbia Circuit over a law requiring ByteDance to sell its subsidiary or face a ban from U.S. app stores.
The law violates the First Amendment right to free speech, the companies wrote. The service is a free-speech platform, used by 170 million Americans monthly. While the government can dictate broadcast licenses that operate over public airwaves, it has no such authority over other platforms including newspapers and websites, they said.
“Congress has made a law curtailing massive amounts of protected speech,” the companies wrote. “The government cannot, consistent with the First Amendment, dictate the ownership of newspapers, websites, online platforms, and other privately created speech forums.”
Congress passed, and President Joe Biden signed, the law last month. Many lawmakers argued that TikTok was a tool of the Chinese Communist Party.
Sale not viable, TikTok says
The law’s alternative for TikTok to avoid a U.S. ban, for ByteDance to sell the platform, is unworkable, the companies said.
The algorithm at the core of TikTok’s product, as well as the platform itself, is powered by millions of lines of code developed by thousands of engineers over years, the companies said. Transferring that design to new owners who lack the years of expertise that TikTok’s current workforce has would be impossible within the nine-month deadline stipulated in the law.
The Chinese government would also likely not allow divestiture of the algorithm. China, like the United States, can regulate what technology can be exported, they said, and would likely reject a deal to allow foreign ownership of TikTok.
TikTok as a platform is globally integrated, so even if it were possible to find a new owner and transfer ownership of the product, it would lose much of the appeal — and the related market value — of connecting with users around the world, the companies wrote.
“Divesting TikTok Inc.’s U.S. business and completely severing it from the globally integrated platform of which it is a part is not commercially, technologically, or legally feasible,” they said. “The Act will therefore have the effect of shutting down TikTok in the United States.”
The companies asked the court to declare that the law is unconstitutional, bar Attorney General Merrick Garland from enforcing it and “grant any further relief that may be appropriate.”
National security concerns
Congress included the TikTok bill in a package of high-profile spending items, including military and humanitarian aid to Ukraine, Israel and Taiwan. Biden signed the package into law April 24.
Several China hawks in Congress have expressed concerns that the Chinese government and its ruling Communist Party can compel ByteDance to provide data from TikTok users’ devices.
They have also raised concerns that the Chinese Communist Party can manipulate content on the platform.
Sen. Mitt Romney, a Utah Republican, said last week the “overwhelming” share of pro-Palestinian content on TikTok compared to other platforms was a reason driving support for a ban among lawmakers.
In their suit, TikTok and ByteDance said the government has not presented evidence to back up concerns over data privacy or content manipulation and instead relied on hypothetical risks.
“Those speculative concerns fall far short of what is required when First Amendment rights are at stake,” they said.
Rep. John Moolenaar, a Michigan Republican who chairs the U.S. House Select Committee on the Chinese Communist Party, said in a written statement posted by the committee’s X account Tuesday he was “confident that our legislation will be upheld.”
“Congress and the Executive Branch have concluded, based on both publicly available and classified information, that TikTok poses a grave risk to national security and the American people,” Moolenaar said. “It is telling that TikTok would rather spend its time, money, and effort fighting in court than solving the problem by breaking up with the Chinese Communist Party.”
