TikTok: U.S. Ban Inevitable Without Court Order

ByteDance says divestiture isn’t possible, TikTok claims the law violates free speech, and has spent over $2 billion to protect U.S. user data

The U.S. government has declined to engage in any meaningful settlement talks after 2022, according to TikTok and its Chinese parent company, ByteDance, who urged a U.S. court on Thursday to invalidate a law that they claim will prohibit the popular short video app from operating in the United States on January 19.

ByteDance has until January 19 of the following year to divest TikTok’s U.S. assets or the app will be banned, per legislation signed by President Joe Biden in April.

One hundred seventy million Americans use the app. ByteDance says a divestiture is “technologically, commercially, or legally impossible.”

On September 16, the U.S. Court of Appeals for the District of Columbia will hear oral arguments regarding lawsuits filed by TikTok, ByteDance, and TikTok users.

The case’s outcome may determine TikTok’s future in the United States, influencing how the U.S. government employs its new authority to regulate foreign-owned applications.

ByteDance and TikTok contend that this law is a significant departure from the nation’s history of advocating for an open Internet and establishes a dangerous precedent that would enable the political branches to target a speech platform that is not in their favor and compel it to either sell or be shut down.

They are requesting that the court invalidate the law.

The measure was enacted by Congress with a resounding majority just weeks after it was introduced as a result of concerns among U.S. lawmakers that China could access data on Americans or spy on them using the app.

According to their attorneys, the law would violate the free speech rights of a group of TikTok users who have filed a lawsuit to prevent the app from being prohibited.

They argued in a filing on Thursday that the law “allows TikTok to continue operating through the rest of this year — including during an election that the very president who signed the bill says is existential for our democracy.” There are no imminent national security risks.

TikTok contends that any divestiture or separation, regardless of its technical feasibility, would require years and that the law violates the free speech rights of Americans.

Additionally, it asserts that the law unfairly targets TikTok for punitive treatment and “ignores the many U.S. companies that develop software and employ engineers in China, as well as many applications with substantial operations in China that collect large amounts of U.S. user data.”

ByteDance detailed the extensive negotiations between the company and the U.S. government, which it claims were abruptly terminated in August 2022.

The company has also disclosed that it has allocated over $2 billion to safeguarding the data of U.S. TikTok users. Additionally, it has released a redacted version of a draft national security agreement that spans over 100 pages.

The draft agreement stated that the U.S. government was granted a “kill switch” to suspend TikTok in the United States at its sole discretion if the company failed to comply with the agreement. Additionally, the U.S. demanded that TikTok’s source code be relocated from China.

TikTok lawyers wrote the Justice Department in an April 1 email made public on Thursday that the administration has decided to pursue the closure of TikTok in the United States and the elimination of a platform of speech for 170 million Americans rather than continuing to develop a practical, feasible, and effective solution to protect U.S. users through an enforceable agreement with the U.S. government.

The Justice Department declined to respond to the email. However, last month, it was stated that the law “addresses critical national security concerns in a manner consistent with the First Amendment and other constitutional limitations.”

It said that it would defend the legislation in court.

In 2020, the courts prevented President Donald Trump from banning TikTok and WeChat, a Chinese-owned subsidiary of Tencent (0700. HK), in the United States.

The White House has expressed its desire to terminate Chinese-based ownership for national security reasons but has not imposed a moratorium on TikTok.

Trump has recently expressed apprehension regarding the possibility of a TikTok moratorium and joined the platform earlier this month.

The law prohibits TikTok from being available in app stores like Apple and Alphabet. It also bans internet hosting services from supporting TikTok unless ByteDance divests it.