TikTok has launched a legal challenge against the U.S. government, saying that the recently approved bill that will force it to be sold to a U.S.-based owner is unconstitutional, unfounded, and is actually designed to ban the app in the nation.
The full filing outlines TikTok’s case against the “Protecting Americans From Foreign Adversary Controlled Applications Act,” which they claim is designed to specifically target TikTok and parent company ByteDance, for no reason outside of the “hypothetical possibility” that the app poses an actual threat.
As per the filing:
“Congress has taken the unprecedented step of expressly singling out and banning TikTok: a vibrant online forum for protected speech and expression used by 170 million Americans to create, share, and view videos over the Internet. For the first time in history, Congress has enacted a law that subjects a single, named speech platform to a permanent, nationwide ban, and bars every American from participating in a unique online community with more than 1 billion people worldwide.”
TikTok has been pushing the “total ban” angle for the last few months, which has angered some U.S. politicians who’ve claimed that this is deliberately misleading, in that the bill is not a ban, as such.
But TikTok says that, in effect, the bill is a ban, because it simply won’t be able to divest itself to the degree required to meet the bill’s specifications.
“The ‘qualified divestiture’ demanded by the Act to allow TikTok to continue operating in the United States is simply not possible: not commercially, not technologically, not legally. And certainly not on the 270-day timeline required by the Act. [We] have repeatedly explained this to the U.S. government, and sponsors of the Act were aware that divestment is not possible. There is no question: the Act will force a shutdown of TikTok by January 19, 2025, silencing the 170 million Americans who use the platform to communicate in ways that cannot be replicated elsewhere.”
TikTok says that the bill is based on speculation about the possible threat posed by the app and nothing more, with senators failing to articulate any legitimate cause for concern. Which has been noted by many onlookers, because while senators have been briefed by cybersecurity experts, those briefings have happened behind closed doors, keeping the detail of the TikTok threat out of the public domain.
But the basis, essentially, aside from data gathering concerns, is that TikTok could also be used to spread pro-China talking points, as submitted by the Chinese government. And given the many China-based mass influence efforts that are being conducted in other social apps, it does stand to reason that a Chinese-owned app, over which the Chinese Communist Party (CCP) can exert more control, would also be used for the same.
Indeed, recent reports have indicated that Chinese groups have sought to influence political process in Australia, New Zealand, Taiwan and the United Kingdom, while EU officials have also raised concerns about Chinese influence activity, in the lead-up to their polls.
Virtually every social platform has reported the detection of such initiatives, and that may be enough to implicate TikTok in itself. Or, as the filing claims, there may not be direct evidence to indicate a TikTok-specific threat, outside of these assumptions.
Either way, TikTok says the bill is unconstitutional:
“Banning TikTok is so obviously unconstitutional, in fact, that even the Act’s sponsors recognized that reality, and therefore have tried mightily to depict the law not as a ban at all, but merely a regulation of TikTok’s ownership.”
TikTok’s final rebuttal is a criticism of what it sees as U.S. government overreach, which it says could be used more broadly in future:
“If Congress can do this, it can circumvent the First Amendment by invoking national security and ordering the publisher of any individual newspaper or website to sell to avoid being shut down. And for TikTok, any such divestiture would disconnect Americans from the rest of the global community on a platform devoted to shared content — an outcome fundamentally at odds with the Constitution’s commitment to both free speech and individual liberty.”
Which is not true. The bill is based on national security concerns, with the required stipulation of “foreign adversary” control of said platform. Which is a pretty finite scope, but still, TikTok’s looking to use this angle as a means to enhance opposition to the proposal, by provoking fears of government control, seemingly to help ramp up public disapproval of the same.
Which holds no legal standing, and won’t be factored into the judgment. But TikTok seems to be of the belief that by invoking the platform’s usage, and impact, and the effect such a ruling will have on the people, that may benefit its case.
But it’s all technical now, with the case set to be heard on the legal merits of the challenge, not on the emotional or economic impact, which are aside from the law. Cause and effect are unrelated in this context, as it’s not the popularity of the app that’s in question, but the concern, under national security consideration, that it could be used to influence people outside of China.
Which seems to soften TikTok’s counter-argument somewhat. But the court will now have to decide, with TikTok submitting its challenge to the Federal Court.
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