TikTok published a letter on Thursday accusing the Biden administration of engaging in “political demagoguery” during key negotiations between the federal government and the corporate to handle concerns about its presence within the United States.
The letter – sent to David Newman, a senior official within the Justice Department’s national security division, before President Biden signed the potential TikTok ban into law – was filed in federal court together with a legal opinion supporting the corporate’s lawsuit against the measure. TikTok’s Beijing-based parent company ByteDance can be a plaintiff within the suit, which is anticipated to be one in every of the biggest legal battles in technology and web history.
The internal documents contain details of negotiations between TikTok and the Committee on Foreign Investment within the United States between January 2021 and August 2022, a secretive interagency panel that investigates corporate dealings on national security grounds.
TikTok has said those talks ultimately resulted in a 90-page draft security agreement that may have required the corporate to implement stricter safeguards for U.S. user data. TikTok would even have been required to incorporate a “kill switch” that may have allowed CFIUS to dam the platform if it was found to be in violation of the agreement.
However, lawyers for TikTok said the agency had “terminated all substantive negotiations” with the corporate after it submitted the draft agreement in August 2022.
CFIUS didn’t immediately reply to a request for comment. The Justice Department said it looks forward to defending the recently passed law, which it said “addresses critical national security concerns in a manner consistent with the First Amendment and other constitutional limitations.”
“The Department of Justice, along with other members of our intelligence community and Congress, has repeatedly warned of the threat posed by autocratic states that can weaponize technology – like the apps and software that run on our phones – against us,” the statement said. “This threat is exacerbated when these autocratic states require companies under their control to secretly share sensitive data with the government.”
The letter sent to Newman lists additional meetings between TikTok and government officials since then, including a phone call in March 2023 that the corporate said was arranged by Paul Rosen, the U.S. Treasury Department’s undersecretary for investment security.
According to TikTok, Rosen told the corporate that “senior government officials” found the draft agreement insufficient to handle the federal government’s national security concerns. Rosen also said an answer would must include a divestment by ByteDance and the migration of the social platform’s source code or its fundamental programming out of China.
TikTok’s lawsuit claims the divestment is technologically unimaginable since the law requires all of TikTok’s thousands and thousands of lines of code to be stripped from ByteDance, meaning there would not be an “operational relationship” between the Chinese company and the brand new U.S. app.
After the Wall Street Journal reported in March 2023 that CFIUS had threatened ByteDance with divesting TikTok or facing a ban, TikTok’s lawyers held one other phone call with senior officials on the Justice and Treasury Departments, explaining that indiscretions by government officials to the media were “problematic and damaging.”
That phone call was followed by an in-person meeting between TikTok’s lawyers, technical experts and senior Treasury officials in May 2023 to debate data security measures and TikTok’s source code, the corporate’s lawyers said. The final meeting with CFIUS was in September 2023.
In the letter to Newman, TikTok’s lawyers say CFIUS offers a constructive strategy to address the federal government’s concerns. But they added that the agency can only serve that purpose if the law – which requires confidentiality – and regulations “are followed and both sides engage in good faith discussions, as opposed to political subterfuge that abuses CFIUS negotiations for legislative purposes.”
The legal opinion also details a one-page document (which the Justice Department reportedly provided to members of Congress in March, a month before they passed the federal bill requiring the platform to be sold to an approved buyer or face a ban), but that document doesn’t provide any details.
TikTok’s lawyers said the document claimed TikTok collects sensitive data without claiming the Chinese government has ever received such data. According to the corporate, the document also claimed TikTok’s algorithm allows China to influence content on the platform without claiming the country has ever done so.
