The legal battle surrounding the TikTok ban has begun, and as of June 20th, the parent company, ByteDance, must clarify the reasons for filing a lawsuit. The evidence of TikTok posing a national security threat may be one of the focal points of the courtroom debates.
After a series of still confidential briefings, U.S. lawmakers swiftly passed the TikTok ban bill. On April 24th, President Biden signed the TikTok Act into law; on May 7th, TikTok and its Chinese parent company, ByteDance, filed a lawsuit with the U.S. Court of Appeals for the District of Columbia Circuit, arguing that the law violated the First Amendment’s protection of free speech.
The U.S. Congress and government are concerned that under the Chinese Communist Party’s national security law, the Chinese government may access the data of TikTok’s 170 million American users. FBI Director Christopher Wray stated that ByteDance is “controlled by the Chinese (Communist) government,” warning that the Beijing authorities could manipulate TikTok’s algorithms to influence Americans and allow the Chinese government to collect user data for “traditional espionage activities.”
TikTok denies that the Chinese government is attempting to access American user data and states that it will reject any such requests. During a congressional appearance last year, TikTok CEO Shou Zi Chew said, “Let me be clear: ByteDance is not an agent of China (the Communist Party) or any other country.”
U.S. intelligence agency officials held classified briefings for lawmakers to support Wray’s public testimony on TikTok’s security risks. Bloomberg reported that these meetings revealed some overlap in responsibilities between ByteDance executives and the Chinese Communist Party.
Chairman of the House Committee on Foreign Affairs, Republican Michael McCaul of Texas, likened TikTok to a Chinese spy balloon on phones. “It can monitor your keystrokes, it can monitor your web browser,” he said in an interview.
In a filing submitted last month, ByteDance stated that the risks mentioned by lawmakers were “speculative” and “fall far short of the requirements when the First Amendment rights are threatened.”
The argument presented by ByteDance tests whether the U.S. will disclose and share confidential information with Congress.
Senator Richard Blumenthal disagreed with ByteDance’s argument, stating that the burden of proof is on TikTok. “They challenge a bill of Congress to be null and void, while the bill of Congress is deemed valid,” said Blumenthal in an interview. “They are just a platform. They don’t express anything; it’s their users who do.” He further questioned their authority to demand user rights.
However, Blumenthal and some lawmakers urge the declassification of some information they learned in closed-door meetings with U.S. intelligence officials.
Republican lawyer Joel Thayer, who is pushing for the TikTok ban bill, stated that the briefings from the intelligence community were key in prompting legislators to take action. “This is not about the past, this is about what TikTok is doing now.”
In a motion filed on May 17th, the Department of Justice stated that it is evaluating whether to submit documents containing classified material and other evidence. A spokesperson for the Office of the Director of National Intelligence confirmed that the agency has been in contact with Congress on this issue.
In another statement, the Department of Justice expressed readiness to defend the law, stating, “This legislation resolves critical national security concerns in a manner consistent with the First Amendment and other constitutional limitations.”
Bloomberg reported that University of Virginia law professor Paul Stephan expressed doubts that judges would compel the government to disclose national secrets in this case.
Stephan stated in an interview, “It would be unimaginable for the court to compel them to disclose anything. At this point, it is not hard to see the Department of Justice pressuring the court rather than quickly surrendering.”
Supporters of the bill to divest or ban TikTok stated in interviews that public information confirms the risks of TikTok. A congressional assistant, speaking anonymously, noted that members of the House Committee on Foreign Affairs still believe that publicly disclosing records without revealing classified information demonstrates the necessity of divesting TikTok assets.
In 2022, an Australian-American cybersecurity company found that TikTok was engaging in “excessive data collection” from user smartphones, checking device location at least once per hour and possessing codes to collect phone and SIM card serial numbers. TikTok refuted the findings of this investigation and stated that the report “misrepresents the amount of data we collect.”
Fortune reported on April 15th that many interviewed former employees, some of whom were hired only last year, revealed that during their tenure, parts of TikTok’s operations were intertwined with its parent company, and the company’s claimed independence from China was largely superficial.
Former employees disclosed that every 14 days, spreadsheets containing data of hundreds of thousands of American users were sent via email to ByteDance in Beijing. This data included names, email addresses, IP addresses, as well as geographical and demographic information of TikTok’s U.S. users. All of this happened as TikTok began implementing measures to keep sensitive American user data in the U.S. and allowing only U.S. employees to access it.
Bloomberg reported that Stephan stated that the broader issue of free speech at the core of this case, users have other social media platforms to express their views.
“The First Amendment protects freedom of speech,” he said, “when there are many other alternative platforms, the right to access a specific platform becomes somewhat questionable.”