The latest law that might ban TikTok was the culmination of years of escalating concerns about whether the app might be used to surveil Americans or manipulate public discourse.
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TikTok has officially launched what is bound to be a lengthy legal challenge to a law signed by President Joe Biden in April that might ban the hugely popular app within the United States unless China-based parent company ByteDance agrees to sell it to an American owner.
On Tuesday, the corporate filed a lawsuit searching for to defeat the Protecting Americans From Foreign Adversary Controlled Applications Act, a bill that might give ByteDance 270 days to divest its crown jewel or face TikTok’s removal from app stores in the entire country. In the lawsuit, TikTok called the law a targeted and unconstitutional ban on the platform — despite assurances from Biden and the White House that the goal was to not shut down TikTok but to maintain it operating here under latest owners. TikTok called the law a violation of its own First Amendment rights in addition to the free speech rights of 170 million Americans.
“There are good reasons why Congress has never enacted a law like this before,” corporate lawyers at Mayer Brown and Covington & Burling wrote in a 67-page grievance. “Congress has never before created a two-tiered speech regime with one set of rules for a designated platform and another set of rules for everyone else.”
“Congress must abide by the provisions of the Constitution even as it purports to protect against risks to national security,” the grievance states. “Congress has not done so here, and the law should be enacted.”
The latest law was the culmination of years of escalating national security fears over whether TikTok — based on an opaque and highly precious algorithm developed by ByteDance engineers in China — might be used to watch Americans or manipulate public discourse. These concerns were reinforced by a drumbeat Forbes Reporting revealing ByteDance used TikTok to spy on journalists; suppressed discussion of certain “sensitive” topics on a few of its platforms; and mishandled the information of TikTok creators, TikTok advertisers and celebrities, politicians and other public figures on the app. Chinese state media have also used TikTok to distribute divisive videos about US politicians. The grievance dismisses such well-documented data security and content risks as “speculative and analytically flawed” and states: “The speculative risk of harm is simply not sufficient when First Amendment values are at stake.”
Meanwhile, others argue that shutting down the app could be a blow to the American economy, and the identical lawyers who prevented it from being banned by former President Donald Trump in 2020 – and later in Montana – are already rallying developers to shut it down Use lawsuits to fight back.
TikTok latest petition just raises the stakes of this fight; Here are five key things you need to learn about it.
Biden’s use of TikTok undermines alleged national security concerns, TikTok says
The Biden campaign joined TikTok shortly before the signing of the law that might ban TikTok. This move has caused confusion amongst some critics and developers. TikTok took advantage of that – and the indisputable fact that several congressmen Proponents of the law are also lively on TikTok as ammunition to indicate that the app’s alleged national security risks are invalid. “This continued use of TikTok by President Biden and members of Congress undermines the assertion that the platform poses an actual threat to Americans,” TikTok said in its grievance. And unlike his previous stance on the app, Trump is identical way I’m considering joining TikTok to succeed in potential voters.
Divestment is just not a start line, says TikTok
“The ‘qualified divestiture’ required by the law to allow TikTok to continue operating in the United States is simply not possible: commercially, technologically, or legally,” TikTok said in its grievance. It is “so illusory that there is no alternative at all.”
Some experts and other people who’ve worked at or closely with TikTok share this view and argue that it’ll be nearly not possible to separate TikTok from ByteDance. (Forbes Reporting has also repeatedly shown how intertwined the 2 corporations are, which TikTok emphasized ad nauseam in its grievance.) “There is no way to take the U.S. share out of TikTok and sell it to someone,” the said former National Security Agency General Counsel Glenn Gerstell Forbes Last month. The Chinese government has also said it’ll not reveal TikTok’s secret sauce: the suggestion engine. “No one is going to buy a TikTok in the U.S. that doesn’t have the algorithm,” Gerstell said. “The thing that makes it valuable is exactly what’s not for sale.”
American social media corporations pose the identical risks, says TikTok
TikTok argues that its competitors, including the parent corporations of YouTube and Instagram, have the identical problems that the U.S. government allegedly found at TikTok. The law “ignores the multiple ways in which other companies – both foreign and domestic – may pose the same risks to data security and the spread of misinformation,” the grievance says. It “ignores the reality that much of the data collected by TikTok is no different in nature from the data routinely collected by other applications and sources in today’s online world, including American companies such as Google, Snap and Meta .”…There’s no reason for it [privacy and content] Concerns would support a ban [ByteDance] Platforms without corresponding bans on other platforms.
The law targets all ByteDance apps, not only TikTok, and all content, not only the bad ones, TikTok says
ByteDance owns a big suite of apps — including CapCut and Lemon8, that are widely utilized in the U.S. — that, despite relatively little oversight, could be collateral damage in a ban against TikTok. The law is “over-inclusive because it also applies to other ByteDance Ltd. applications.” “Congress has not shown — and cannot possibly show — that they pose the risks that the law is apparently intended to address,” TikTok’s grievance states.
Likewise, a lot of the content that might be lost if TikTok were switched off is definitely unproblematic. “The government has never alleged that all – or even most – content on TikTok (or any other ByteDance-owned application) constitutes disinformation, misinformation, or propaganda,” the grievance states. “Nevertheless, the law prohibits any speech on ByteDance-owned applications at any time, in any place and in any manner. This is textbook exaggeration.”
There are higher ways to attain this, says TikTok
TikTok argued that there are “less restrictive and more narrowly tailored means” to attain the identical goal of addressing national security concerns related to the app – considered one of which is reaching an agreement with the Committee on Foreign Investment within the US. The Trump and Biden administrations, through CFIUS, had been negotiating such an agreement with TikTok since 2019, but those talks collapsed in August 2022 as they neared the goal, the grievance says. The work proposal would have given the U.S. government the flexibility to shut down TikTok if it fails to comply with the contract, which the corporate described as a less stringent and equally productive approach to the identical problem. “If a less restrictive alternative would serve the government’s purpose, the Legislature must use that alternative,” the grievance states. “The terms of this negotiated package are far less restrictive than an outright ban.”
In addition, Congress could have passed a national data protection law or laws just like the European Union’s Digital Services Act, TikTok said in its grievance. Lawmakers could have “pursued any number of industry-wide regulations aimed at addressing the industry-wide issues of data security and content integrity” or “enacted a data protection law regulating the transfer of Americans’ sensitive data abroad,” the grievance said. But “Congress did not pursue any of these alternatives.”
Do you will have a tip about TikTok or ByteDance? Contact Alexandra S. Levine securely via Signal/WhatsApp at (310) 526–1242 or email alevine@forbes.com.
