Fifteen minutes.
That’s all the time TikTok has today to stop a federal appeals court from upholding a potential U.S. ban on TikTok’s social media app, which is used by 170 million Americans.
Those 15 minutes could prove to be the most meaningful of TikTok’s American existence, as the company fights for survival in the face of a bill signed by President Joe Biden that could take effect as early as January.
The law Biden signed would ban TikTok from Americans’ personal devices unless Chinese parent company ByteDance quickly sells TikTok to someone else. That could effectively mean the end of the app as we know it.
As the deadline for a potential ban approaches, TikTok and ByteDance have gone to court asking to block the law and declare it unconstitutional on First Amendment grounds.
TikTok doesn’t have the luxury of a full-blown lawsuit to argue its continued existence in its current form.
That’s because the law at issue requires any legal challenge to bypass federal district court and go directly to the U.S. Court of Appeals for the District of Columbia Circuit within a strict time frame. A three-judge panel will hear the case and likely rule on the law’s constitutionality within a few weeks.
Brief arguments scheduled for Monday
The companies will present their cases orally on Monday at 9:30 a.m. ET. TikTok will have just a few minutes to make an impact. But it won’t be alone: A group of TikTok creators who are also suing the Biden administration will be up next, with 10 minutes to speak. And the Biden administration will wrap things up with a 25-minute presentation of its own.
With each side in the debate for about a half hour, TikTok and its allies will attempt to explain why the court should strike down the law and prevent it from being enforced. Justice Department lawyers will explain why a potential TikTok ban or forced sale — or as they’ll likely call it, a “qualified divestiture” — is the only way to keep American users safe.
The case is being heard by Chief Justice Sri Srinivasan, appointed by Obama, along with Justice Neomi Rao, appointed by former President Donald Trump, and Justice Douglas Ginsburg, appointed by Reagan.
The key question for Monday’s panel: Does the hypothetical risk of Chinese spying via TikTok pose a sufficient threat to national security that it warrants a federal law that could infringe on Americans’ constitutional freedom of speech?
It’s unclear when the court could rule on whether to block the legislation. But the law sets a January 19 deadline for TikTok, so it’s likely the court will rule sooner.
US fears China
The legislation, rushed through Congress with unprecedented speed this spring, is a U.S. response to fears that TikTok’s ties to China could lead to the Chinese government gaining access to app data about American users, such as which videos they have watched, liked, shared or searched for.
The measure has become a symbol of bipartisan opposition to China. But to TikTok’s supporters, including some of its most prominent content creators, the law reeks of racism and anti-China hysteria. They argue that it does little to address other, potentially more sensitive, sources of data that are freely available on commercial marketplaces.
The outcome of the case won’t just determine TikTok’s fate in the United States. It could also have a domino effect on how courts interpret the First Amendment — which offers guarantees against government bans on free speech — and its relationship to digital speech and online platforms more generally.
TikTok argues the potential ban violates the First Amendment because it restricts American users’ ability to express themselves and access information. And it argues the law is unconstitutionally extreme, while the government had other options to address fears about TikTok’s ties to China.
Court documents show that TikTok and U.S. national security officials worked out a draft proposal to address security concerns. That agreement included the ability for the U.S. government to shut down TikTok if it violated the proposed deal. Some of the deal’s provisions TikTok has already publicly implemented as part of an initiative called Project Texas, which involves moving U.S. user data to servers operated by U.S. tech giant Oracle and creating additional organizational barriers between TikTok and ByteDance.
But TikTok claims that U.S. officials abruptly abandoned the plan without explanation. (The U.S. government later described the plan in court documents as “inadequate,” because officials feared it would be difficult to detect whether TikTok was violating the agreement.)
TikTok has also argued that it’s technologically impossible to separate its app from its parent company. For starters, it said in a court filing, the TikTok app relies on software code built by ByteDance, and there’s no way to simply copy that code to another company and expect it to run.
Second, the company argues, the Chinese government is unlikely to allow TikTok’s recommendation algorithm to be sold to a non-Chinese company. The recommendation engine is TikTok’s secret sauce and what drives its popularity; without it, the app loses its most distinguishing feature.
Last year, the Chinese government said it would “strongly” oppose a potential sale of TikTok by ByteDance, following the country’s announcement of new export controls affecting the transfer of certain software algorithms.
TikTok has portrayed the US law as a massive congressional power grab that threatens the freedom of speech of all Americans.
“If Congress can do this,” the company wrote in its filings, “it could circumvent the First Amendment by invoking national security and ordering the publisher of each individual newspaper or website to sell or face closure.”
‘Speculative concerns,’ says TikTok
Finally, TikTok claims that the US government has never proven that the Chinese government misused US user data to justify the law.
“Even statements from individual members of Congress and a congressional committee report only hint at concerns about the hypothetical possibility that TikTok could be abused in the future, without citing specific evidence — even though the platform has played a prominent role in the United States since it first launched in 2017,” the company wrote. “Those speculative concerns fall far short of what is required when First Amendment rights are at stake.”
The US government has argued in its own documents that lawmakers are free to take action “even if all threatened harm has not yet materialized or been discovered.”
The Biden administration says the Chinese government has the incentive and ability to pressure ByteDance into handing over TikTok user data, which it says could be useful to intelligence agencies or to manipulate the public through disinformation campaigns.
The United States, for its part, also routinely requests user data from social media companies. But there are usually checks and balances on the government, such as laws limiting what intelligence officials can do with data on U.S. citizens or, for domestic law enforcement, requirements that authorities obtain a court order in exchange for user data — orders that tech companies can and often do challenge, even if they’re not always allowed to release them.
“TikTok’s parent company and recommendation algorithm are based in China,” the Justice Department wrote in a court document, “creating the risk that a foreign adversary could use TikTok’s vast power to advance its own interests at the expense of U.S. national security.”
The US government has also insisted that the law does not constitute a ban, as it essentially gives TikTok the ability to circumvent a ban by finding a new owner within about six months.
Independent cybersecurity experts say the risk of Chinese espionage via TikTok sounds plausible, but not yet proven.
China’s intelligence laws require companies with a presence there to assist with that country’s intelligence objectives. TikTok doesn’t operate in China, but ByteDance does, meaning it’s subject to Chinese law — and the Chinese government has a board seat in ByteDance’s local Chinese subsidiary. The question is whether all of that has enough leverage for ByteDance and TikTok to gain access to TikTok’s U.S. user data, despite the restrictions Project Texas has promised.
All eyes on TikTok
The case has attracted enormous attention, prompting friend-of-the-court filings from more than a dozen U.S. states, the House Committee on China that drafted the law, former U.S. national security officials, business and civil rights groups, and a former chairman of the Federal Communications Commission.
The law in question “clearly raises the issue of political bias and motivation, singling out TikTok because of its foreign ownership, while other major social media platforms raise similar concerns about privacy and content moderation,” a coalition of digital rights groups wrote in a document.
But former national security officials wrote that TikTok user data, combined with other information Beijing has collected through hacks and leaks, could pose a major risk to the intelligence community.
The Chinese government, wrote the group, which includes former National Cyber Director Chris Inglis, “can use this vast trove of sensitive data to power advanced artificial intelligence (AI) capabilities that could then be used to identify Americans for intelligence gathering, conduct sophisticated electronic and human intelligence operations, and even be weaponized to undermine the political and economic stability of the United States.”
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