TikTok appeared in federal court on Monday to fight for its existence as an upcoming deadline in January could force the app out of the U.S.
It was difficult, after several hours of questioning to determine the court’s stance in this high-stakes case, which is the biggest challenge TikTok is facing.
Three judges of the U.S. Court of Appeals in Washington, D.C. Circuit seemed to be skeptical of TikTok’s argument that freedom of expression is more important than Washington’s national security concerns. This is because ByteDance’s parent, TikTok, is based out of China, a country that has been a major adversary to the United States.
The judges pointed out, however, that TikTok, as well as its U.S. operations and millions of users in the United States, are protected by the First Amendment and the government’s decision to shut down the app would be a violation of those rights.
In April, Biden signed legislation giving TikTok’s parent company ByteDance 90 days to find an alternative buyer or face being banned from the country.
Freedom of speech and national security: What’s at stake?
If the law is not overturned, it will take effect on January 19. A possible extension is likely if this case drags out.
The Washington court battle is the most publicized fight between digital freedom of speech and national security protection.
The administration of President Biden is standing up for the TikTok ban that Congress passed. On the campaign trail, former President Trump said that he now supported TikTok in the U.S. This is a complete 180-degree turn from his attempts to shut down the application when he served in the White House.
The Justice Department, for its part, has requested that the three-judge panel render a decision by December. The full panel of the federal appellate court can review any ruling. The U.S. Supreme Court can then review the ruling.
TikTok claims it is being singled out
Lawyers for TikTok claim that the app has been unfairly singled out and that the forced shutdown of a service that is used by over 170 million Americans would be a violation of their First Amendment rights.
Andrew Pincus, the lawyer for TikTok, argued that, if the government wanted to ban TikTok it had to demonstrate what is known in legal terms as “strict examination,” which means that there must be a compelling justification and that all other options have been exhausted before banning. He said that the government failed to meet both of these tests.
Sri Srinivasan, Circuit Judge of the United States Court of Appeals for the Second Circuit, asked: What happens if a country in America controls a media firm and if America is at war? The judge said that by TikTok’s logic, the U.S. couldn’t ban the media company unless they cleared this high legal barrier.
Srinivasan asked, “Can’t Congress bar the enemy from owning a major U.S. media outlet?”
Pincus, a TikTok attorney, compared TikTok with Business Insider and Politico, two media outlets that are owned by a German publishing company. American writers of those publications have still rights in the U.S.
Owning a foreign enemy is a crucial factor
Srinivasan said that the biggest difference between Business Insider and Politico is that they are owned by foreign rivals. He said that ByteDance is the owner of TikTok.
Neomi Rao of the Federal Court of Appeals asked Jeffrey Fisher, an attorney representing TikTok creators if TikTokkers had a First Amendment right to know who owns this platform.
Fisher answered “Absolutely yes.” Fisher replied, “Absolutely, yes.”
Daniel Tenny, a lawyer with the Department of Justice, said TikTok collects huge amounts of data from millions of Americans.
Tenny explained that the data was extremely valuable for a foreign adversary who wanted to compromise the United States.
Tenny said ByteDance may manipulate its algorithm one day to boost pro-China videos or turn Americans against America to recruit “an Intelligence Asset,” he added.
Srinivasan replied that Americans are choosing what they see on the app. He said that banning the app would remove this right away.
Srinivasan stated that the fact that this is being denied puts it under serious First Amendment scrutiny.
Rao, the judge, said that the law specifically targets TikTok because U.S. citizens as well as TikTok U.S. entities are “engaging in protected speech”.
The judges acknowledged that, whatever the reason for the passage of the law was, they would show respect to Congress if it had established that there was a legitimate threat to national security. It is a question of whether this security threat is sufficient to justify speech restriction.
In this case, there has been a heated debate about what exactly the Department of Justice is claiming against TikTok.
The Biden administration stated in general terms that TikTok’s connection to a Chinese tech firm is a national security concern. However, it has not been revealed whether the Chinese government ever accessed Americans’ data or influenced the application.
Biden administration officials claim that the release of this case, even to TikTok lawyers, would cause “exceptionally grave harm” to America’s security.
Pincus, a TikTok attorney, told the court that “we haven’t been able to see what is in the secret confidential submissions.”
Judge Rao: TikTok’s “strange rationale” used to overturn the law
Rao said that it’s almost like TikTok was asking the court to return the law to Congress for amendment.
Rao said at one point that it was “a very strange framework” to try and overturn the laws by attacking Congress’ legislative power.
“I understand that Congress does not always pass laws, but they did so here. They passed a law. Many of your arguments ask us to treat the agency as if it were a law.”
Pincus responded: “It is an unusual law.”
After years of TikTok scrutiny, a high-stakes trial has been held
U.S. legislators have scrutinized TikTok’s ties with China since its rise as America’s favorite video app.
TikTok has more than 170 million users in America. That’s more than half the population. 90 percent of TikTok’s users live outside the U.S. The app has become the most popular social media app in the world for fast-paced, addictive videos.
Washington lawmakers and national security officials have feared for years that the Chinese government might manipulate TikTok to boost videos that promote China’s worldview. Additional concerns include the Chinese government’s spying on Americans and their misuse of data.
TikTok says that it has spent more than $2 billion in a restructuring of the company, isolating the U.S. operations of the app, which are headquartered in Los Angeles, from ByteDance’s Beijing-based headquarters. The plan was dubbed “Project Texas” because TikTok has partnered with Austin cloud computing company Oracle to oversee the data flow and security of the app.
Documents in TikTok’s lawsuit reveal that Biden’s administration was close to resolving. Executives at TikTok hoped that a national security agreement would be reached between the U.S.
The White House’s China hawks intervened before the deal was finalized with an ultimatum. Either sell the app to non-Chinese companies or outside investors or face being banned from the U.S.
Apple and Google will be legally compelled to remove TikTok if it is banned. This would make it impossible for TikTok’s app to receive software updates, and eventually render it unusable. Doing business with TikTok will be a federal offense under the new law.
