On Thursday, TikTok submitted a brief defending that the new law that may ban its use in the United States is unconstitutional and should be repealed.
The brief essentially reiterated past arguments that the requirement for TikTok’s Chinese parent company ByteDance to divest its U.S. operations or face a ban violates the U.S. Constitution’s First Amendment.
In the brief, lawyers pointed out, “The law completely deviates from the U.S. tradition of advocating for an open internet, setting a dangerous precedent, allowing the political sector to force the sale or closure of speech platforms they disfavor.”
“The Constitution does not allow Congress to single out a speech platform without any investigation, declaration of reasons, consideration of less restrictive alternatives, and discrimination based on the speaker and content. The law is unconstitutional and must be prohibited,” the brief stated.
On April 24, President Biden signed the “TikTok Divestiture Act” into law. The law requires ByteDance to sell TikTok’s U.S. operations by January 19 next year, or companies like Apple and Google must remove TikTok from their app stores, and ByteDance will no longer be able to provide app updates and software repair services.
The U.S. government believes that the law is crucial for national security as they are concerned that the Chinese Communist Party may use TikTok to strengthen propaganda or surveil the personal lives of Americans.
The Department of Justice is expected to officially respond to TikTok’s lawsuit next month.
In the brief submitted on Thursday, TikTok argued that divesting its U.S. operations could take several years, meaning that the law implies TikTok will inevitably be disabled.
It also refuted the provision of the law that specifically targets TikTok without including other apps.
Lawyers stated that the law “overlooks many applications that conduct significant business in China, collect a large amount of data from American users, and many American companies that develop software in China and employ engineers. All these applications pose the same so-called risks.”
In an attachment, TikTok also submitted a draft of a national security agreement proposed to the U.S. government in August 2022. The Biden administration rejected the agreement, citing insufficient grounds to dismiss national security concerns. However, the brief noted that TikTok has begun implementing some measures outlined in the agreement.
Previously, a group of TikTok creators, funded by TikTok, challenged the law to the U.S. government last month. These cases have since been consolidated.
In 2020, former U.S. President Donald Trump attempted to ban TikTok downloads, but a series of court decisions prevented the ban from taking effect.
According to federal records, TikTok and ByteDance have spent at least $27 million lobbying the U.S. government and Congress since 2019 to prevent TikTok bans.
Legal experts believe that the U.S. government must prove in court that national security or other U.S. interests are actually threatened and demonstrate that the content of the law targets specific issues such as national security instead of restricting freedom of speech.
In addition to the divestiture law, TikTok is currently under investigation by the FTC. Two bipartisan lawmakers have accused TikTok of violating child privacy laws and another law prohibiting “unfair or deceptive” business practices.
On June 19, Chair of the Federal Trade Commission (FTC) Lina Khan stated after years of investigation, “There is reason to believe that TikTok is or is about to violate FTC regulations and the Children’s Online Privacy Protection Act (COPPA),” and has referred complaints about potential violations of children’s privacy by TikTok and ByteDance to the Department of Justice (DOJ).