The U.S. government and TikTok will face off in federal court on Monday as oral arguments begin in a landmark legal case that will determine whether or how a popular social media platform used by nearly half of all Americans will continue to operate in the country.
Lawyers for both sides will appear before a panel of judges in federal appeals court in Washington. TikTok and its China-based parent company, ByteDance, are challenging a U.S. law that requires them to cut ties or face a ban in the United States by mid-January. The legal battle is expected to reach the U.S. Supreme Court.
The law, signed by President Joe Biden in April, was the culmination of a years-long saga in Washington over the short-video sharing app, which the government considers a national security threat because of its connections to China. But TikTok argues the law violates the First Amendment, while other opponents say it mirrors crackdowns sometimes seen in authoritarian countries abroad.
In court documents filed over the summer, the Justice Department emphasized the government’s two main concerns. First, TikTok collects vast amounts of user data, including sensitive information about viewing habits, which could fall into the hands of the Chinese government through coercion. Second, the U.S. says the proprietary algorithm that powers what users see on the app is vulnerable to manipulation by Chinese authorities, who can use it to shape content on the platform in ways that are difficult to detect.
TikTok has repeatedly said it does not share U.S. user data with the Chinese government, and that concerns raised by the government have never been substantiated. In court filings, lawyers for both TikTok and its parent company have argued that members of Congress sought to punish the platform based on the propaganda they perceived was on TikTok. The companies also claimed that divestment is not possible and that the app would have to shut down by Jan. 19 if courts do not step in to block the law.
“Even if divestment were feasible, TikTok in the United States would remain a shadow of its former self, stripped of the innovative and expressive technology that tailors content to each user,” the companies said in a legal brief filed in June. “It would also become an island, preventing Americans from exchanging views with TikTok’s global community.”
Opponents of the law point out that a ban would also cause disruption in the worlds of marketing, retail and the lives of many different content creators, some of whom also sued the government in May. TikTok is covering the legal costs of that suit, which the court has consolidated with the company’s complaint and another filed on behalf of conservative creators working with a nonprofit called BASED Politics Inc.
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Although the government’s main argument for the law is public, a significant portion of its court documents include classified information that has been redacted and hidden from public view. The companies have asked the court to reject the secret documents or appoint a district judge who could investigate the material, which the government has opposed because it would cause a delay in the case. If admitted in court, legal experts say those secret documents could make it nearly impossible to know some of the factors that could influence the final ruling.
In one of the redacted statements filed in late July, the Justice Department said TikTok followed the Chinese government’s instructions regarding content on its platform, without disclosing additional details about when or why those incidents occurred. Casey Blackburn, a senior U.S. intelligence official, wrote in a legal statement that ByteDance and TikTok “have taken actions in response” to the Chinese government’s demands “to censor content outside of China.” Although the intelligence community had “no information” that this has happened on TikTok’s U.S.-operated platform, Blackburn said there is a risk it “could” happen.
In a separate court filing, the Justice Department said the United States “is not required to wait until its foreign adversary takes specific harmful actions before responding to such a threat.”
The companies, however, argue that the government could have taken a more targeted approach to address their concerns.
More than two years ago, during high-level negotiations with the Biden administration, TikTok presented the government with a 90-page draft agreement allowing a third party to monitor the platform’s algorithm, content moderation practices and other programs. TikTok says it has spent more than $2 billion to voluntarily implement some of these measures, which include storing U.S. user data on servers controlled by tech giant Oracle. But it said no deal was reached because government officials essentially walked away from the negotiating table in August 2022.
Justice officials have argued that complying with the draft agreement is impossible or would require extensive resources due to TikTok’s size and technical complexity. The Justice Department also said the only thing that would address the government’s concerns is cutting ties between TikTok and ByteDance, given the porous relationship between the Chinese government and Chinese companies.
But some observers have questioned whether such a move would accelerate the so-called “decoupling” between the United States and its strategic rival at a time when other Chinese-founded companies, such as Shein and Temu, are also causing a stir in the West. Last week, the Biden administration proposed rules that would crack down on duty-free goods shipped directly from China.
For its part, ByteDance has publicly said that TikTok is not for sale. But that hasn’t stopped some investors, including former Treasury Secretary Steven Mnuchin and billionaire Frank McCourt, from announcing offers to buy the platform. However, even if such a sale were to happen, it would likely not feature TikTok’s coveted algorithm, leaving a big question mark over whether the platform would be able to deliver the kind of personalized videos that users expect.
Political alignments on the issue are developing in unconventional ways.
The law, which passed with bipartisan approval in Congress, had met resistance from some progressive and Republican lawmakers who expressed concerns about giving the government the power to ban a platform used by 170 million Americans. Former President Donald Trump, who tried to ban TikTok while in office, now opposes the ban because it would help rival Facebook — a platform Trump continues to criticize over his 2020 election loss.
In court, free speech and social justice groups have filed amicus briefs in support of TikTok, arguing that it restricts users’ First Amendment rights and suppresses the free speech of minority communities by disrupting a tool many of them use to advocate for causes online. Libertarian groups linked to ByteDance investor Jeff Yass have also filed briefs in support of the company.
Meanwhile, the Biden administration has received backing from more than 20 Republican attorneys general, former national security officials and China-focused human rights groups calling on the court to uphold the law.
© 2024 The Canadian Press
