TikTok Challenges U.S. Ban: Legal Battle Over Free Speech and National Security

TikTok is challenging a new U.S. law that could ban the platform, arguing in court that the legislation violates the First Amendment and that viable alternatives to mitigate national security risks were ignored

by Sededin Dedovic
TikTok Challenges U.S. Ban: Legal Battle Over Free Speech and National Security
© Anna Moneymaker / Getty Images

TikTok claims that the government did not adequately consider viable alternative options before moving forward with a law that could ban the platform in the U.S. TikTok, whose parent company ByteDance is based in China, asserts that it provided the U.S.

government with a comprehensive and detailed plan to mitigate national security risks, which was largely ignored when Congress passed a law with significant implications for free speech. In documents filed with the DC Circuit Court on Thursday, TikTok and a group of creators on the platform who filed their own lawsuit laid out their case for why they believe the new law violates the First Amendment.

The court will hear oral arguments in the case on September 16, just a few months before the current deadline for a sale or ban on January 19, 2025. The “Protecting Americans from Foreign Adversary Controlled Applications Act” would effectively ban TikTok from operating in the U.S.

unless it separates from ByteDance by the set deadline. The president has the option to extend this deadline if progress toward a deal is seen. However, separating TikTok is not straightforward, given the limited pool of potential buyers and the likelihood that Chinese export laws would prevent the sale of its prized recommendation algorithm.

Lawmakers who supported the law argue that the separation is necessary to protect national security, fearing that the Chinese government could access U.S. user information due to the China-based ownership of ByteDance and that ByteDance could be pressured by the Chinese government to manipulate the algorithm to spread propaganda in the U.S.

TikTok denies that any of this is happening or could happen in the future, claiming that its operations are separate from ByteDance.

TikTok CEO Shou Zi Chew prepares to testify before the House Energy and Commerce Committee in the Rayburn House Office Building © Chip Somodevilla / Getty Images

TikTok's Arguments

The main points of TikTok's arguments have already been laid out in their complaints.

However, new filings provide a more extensive insight into how TikTok engaged with the U.S. government over several years with detailed plans on how it thought it could mitigate national security risks while continuing its operations.

TikTok submitted hundreds of pages of communications with the U.S. government, including presentations given to the Committee on Foreign Investment in the U.S. (CFIUS) when it was assessing national security risks of its ownership arrangement.

One presentation explains the basics of how its algorithm determines what to recommend to users next, as well as a detailed plan to mitigate risks of improper access to U.S. user data. It goes so far as to include a plan for a “Transparency Center” space, in collaboration with Oracle, where a specific group of employees in TikTok's U.S.

operations could access the source code in a secure computing environment. According to the presentation, no ByteDance employees would be allowed into this space. TikTok called the law “unprecedented,” adding, “Never before has Congress explicitly singled out and shut down a specific forum for speech.

Never before has Congress silenced so much speech in a single act”. Courts typically apply a standard known as strict scrutiny in such cases—the government must have a compelling interest in restricting speech, and the restriction must be narrowly tailored to achieve its goal.

TikTok argues that Congress left the court “virtually nothing to review” when considering “such an extraordinary restriction on speech”. The company says that Congress did not provide findings to justify its reasons behind the law, leaving only statements from individual members of Congress for the court to review.

(Many of these statements are included in an appendix submitted by TikTok.) “There is no indication that Congress even considered TikTok Inc.' s exhaustive, years-long efforts to address government concerns that Chinese affiliates of its privately held parent company, ByteDance Ltd., support the TikTok platform—concerns that would also apply to many other companies operating in China,” TikTok wrote in its filing.

Lawmakers received classified briefings before their votes, which some said influenced or solidified their final position on the law. But the public still does not have access to information from those briefings, though some lawmakers have called for them to be declassified.

The company also said that CFIUS, which was tasked with evaluating its risk mitigation plan, did not provide a substantial explanation for why it took such a hard stance on divestment in March 2023. TikTok claims that when it explained why divestment was not possible and requested a meeting with government officials, it received “no meaningful responses”.

The text of the draft National Security Agreement that TikTok presented to CFIUS is included in the appendix filed with the court. The draft included proposed changes such as creating TikTok US Data Security Inc., a subsidiary that would manage operations involving U.S.

user data, as well as stringent oversight by agencies comprising CFIUS. TikTok said it had already voluntarily implemented much of its plans through its $2 billion “Project Texas”. Nevertheless, recent reports have questioned how effective that project really is for national security.

An April Fortune report quoted former TikTok employees who said the project is “mostly cosmetic” and that workers still communicate with ByteDance executives based in China. Terrence Clark, a spokesperson for the Department of Justice, said in an email statement to The Verge that the agency and intelligence officials have “consistently warned about the threat from autocratic nations that can use technology — such as apps and software found on our phones — against us.

This threat is heightened when those autocratic nations require companies under their control to secretly hand over sensitive data to the government”.