TikTok clashed with the US government in a federal court on Monday, September 16, challenging the law signed by President Biden that requires its Chinese parent company to sell TikTok or face a ban in the US. TikTok argues that the law is unconstitutional, while the US Department of Justice contends that it is necessary to eliminate the national security risks posed by TikTok.
According to the Associated Press, a panel of three judges at the Washington federal appeals court listened to arguments from lawyers representing both sides and TikTok content creators regarding the law that mandates TikTok to sever ties with its parent company, ByteDance.
Andrew Pincus, a senior lawyer representing TikTok, argued in court that the law is unfair to TikTok and violates the First Amendment of the US Constitution because TikTok is a US entity. Another lawyer representing content creators also questioned the law, stating that it infringes on the rights of Americans, similar to prohibiting Americans from publishing on foreign-owned media outlets like Politico and Al Jazeera.
Pincus stated, “The law before this court is unprecedented, and its effects will be staggering.” He added that the law imposes restrictions on speech based on future risks.
President Biden signed the law in April, viewing TikTok as a threat to US security due to its close ties with the Chinese government. The Justice Department in the US expressed concerns about TikTok collecting vast amounts of user data, including sensitive information that could potentially fall into the hands of the Chinese government. Officials also warned that TikTok’s proprietary algorithm could be easily manipulated by Chinese authorities to edit content on the platform covertly.
Lawyer Daniel Tenny from the Justice Department stated in court that data collection is valuable for many companies for commercial purposes like targeted advertising or customizing videos based on user interests. However, the same data is extremely valuable to foreign adversaries seeking to harm US security.
Pincus suggested that Congress could expose any potential propaganda on the platform rather than adopting a strategy of separation or prohibition. He argued that lawmakers’ statements before the law was passed indicated their belief that there was motivated content on TikTok, such as an imbalance in pro-Palestinian and pro-Israeli content during the Gaza conflict.
During the hearing, a panel comprising two Republican and one Democratic judges questioned Pincus’ statements, asking if the government had any room for maneuver on restricting a significant media company controlled by a foreign entity in adversary countries. The judges also raised concerns about TikTok’s foreign ownership and whether Pincus’ arguments apply to wartime situations in the US.
Judge Neomi Rao, appointed by former President Trump, mentioned that creators who sue over the law could continue posting on TikTok if the company is sold or chooses to publish content on other platforms. However, TikTok creators’ lawyer Jeffrey Fisher argued that there are no “interchangeable media” because TikTok, with 170 million US users, is unique in appearance and feel.
One of the content creators suing the government, Paul Tran, outside the court on Monday, mentioned that he and his wife established a skincare company in 2018, struggling until they began making TikTok videos three years ago. He explained that traditional advertising and other social media efforts were unsuccessful in selling products, and only TikTok videos helped increase their views, resulting in enough orders and even appearances on television.
Tran stated, “TikTok has truly revitalized our company and pulled it out from the brink.” He also mentioned that TikTok covered the legal fees for the creators’ lawsuit.
In the latter part of the hearing, the judges pressured the Justice Department regarding the challenge to the law under the First Amendment.
Chief Judge Sri Srinivasan, appointed by former President Obama, acknowledged efforts to prevent content manipulation through government action, affecting those who receive information on TikTok. Lawyer Daniel Tenny from the Justice Department responded that the law does not directly target TikTok users or creators, and the impact on them is indirect.
TikTok has repeatedly asserted that it will not share American user data with the Chinese government, and the concerns raised by the US government have not been substantiated. TikTok claimed in the lawsuit that divestment is not feasible and that even if it were to happen, TikTok would be left as a hollow shell, stripped of the technology that powers it.
In late July, the Justice Department released an edited statement asserting that content on the TikTok platform follows directives from the Chinese government.
Senior intelligence official Casey Blackburn stated in a legal declaration that ByteDance and TikTok have “taken actions in response” to the Chinese government’s requests to review overseas content. While there is “no information” from the intelligence community that this is happening on TikTok’s US-operated platform, Blackburn mentioned it could occur.
TikTok argued that the government could take a more targeted approach to address its concerns. Officials believe that due to TikTok’s scale and technological complexity, complying with the proposed agreements is impossible or would require substantial resources. The only way to address government concerns, according to officials, is to sever the relationship between TikTok and ByteDance.