TikTok says the government did not adequately consider viable alternative options before moving forward with a law that could ban the platform in the United States. TikTok, whose parent company ByteDance is based in China, claims that it provided the US government with an extensive and detailed plan to mitigate national security risks and that this plan was largely ignored when Congress passed a law with a huge impact on speech.
In briefs filed in the D.C. Circuit Court on Thursday, both Tik Tok and a group of creators On the platform, those who filed their own lawsuit explained in detail 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 divestment or ban deadline of January 19, 2025.
The Protecting Americans from Apps Controlled by Foreign Adversaries Act would effectively ban TikTok from operating in the US unless it divests ByteDance by the deadline. The president has the option to slightly extend that deadline if he sees progress toward an agreement. But developing TikTok is not entirely straightforward, given the limited pool of potential buyers and the fact that Chinese export law would likely prevent the sale of its coveted recommendation algorithm.
But lawmakers who supported the legislation have said the divestment is necessary to protect national security, both because they fear the Chinese government could access American users' information because the company is owned by China and because they fear ByteDance may be pressured by the Chinese government. to tip the balance on the algorithm to spread propaganda in the United States. TikTok denies this is happening or could happen in the future, saying its operations are separate from ByteDance.
The broad outlines of TikTok's arguments have already been set out in the complaints. But the new filings provide a broader look at how TikTok engaged the U.S. government over several years with detailed plans for how it thought it could mitigate national security concerns while continuing operations.
In an addendum, TikTok presented hundreds of pages of communications with the US government, including presentations the company made to the Committee on Foreign Investment in the US (CFIUS) when it assessed the national security risks of its configuration of property. One platform explains the basics of how its algorithm determines what to recommend users watch next, as well as a detailed plan to mitigate the risk of US users' data being improperly accessed. It even goes so far as to include a floor plan of a “Dedicated Transparency Center,” through its collaboration with Oracle, where a specific group of employees from TikTok's US data operations could access source code in a secure computing environment. According to the slides, no ByteDance employees would be allowed into the space.
TikTok called the law “unprecedented,” adding that “never before has Congress expressly singled out and closed down a specific speech forum. “Never before has Congress silenced so much speech in a single act.”
Courts typically apply a standard known as strict scrutiny in these types of speech cases: the government must have a compelling interest in restricting speech, and the restriction must be narrowly tailored to achieve its goal.
TikTok claims that Congress has left the court “almost nothing to review” when considering “such an extraordinary restriction of speech.” The company says Congress failed to present findings justifying the reasoning behind the law, leaving only statements from individual members of Congress. so that the court soars. (Many of these statements are included in an appendix presented by TikTok.)
“There is no indication that Congress has even considered TikTok Inc.'s exhaustive, multi-year efforts to address government concerns that Chinese subsidiaries of its private parent company, ByteDance Ltd., support the TikTok platform, concerns that would also apply to many other companies operating in China,” TikTok wrote in its writing. Lawmakers received classified information before their votes, which some said affected or solidified their final position on the bill. But the public still does not have access to the information contained in those reports, although some lawmakers have pushed to declassify them.
The company also said that CFIUS, which was tasked with evaluating its risk mitigation plan in the first place, did not provide a substantive explanation for why it took such a hard line with the divestment in March 2023. TikTok claims that When he explained why the divestment was carried out, it was not possible and he was asked to meet with government officials, but did not receive “significant responses.” CFIUS and the Department of Justice did not immediately respond to requests for comment.
TikTok has said it has already implemented much of its plans voluntarily through its $2 billion Texas Project.
The text of the draft National Security Agreement that TikTok submitted to CFIUS was included in an addendum that was filed with the court. The draft included proposed changes such as the creation of TikTok USA Data Security Inc., a subsidiary that would be tasked with managing operations involving US user data, as well as strong oversight by the agencies that make up CFIUS. TikTok has said it has already implemented much of its plans voluntarily through its $2 billion Texas Project. Still, recent reports have raised questions about how effective that project really is for national security purposes. In a report in Fortune of AprilFormer TikTok employees said the project was “largely cosmetic” and that workers still interact with China-based ByteDance executives.
Still, the court will have to consider whether the US government should have considered a less restrictive route to speech to achieve its national security goals, and TikTok says it should have. “In short, Congress took a sledgehammer without even considering whether a scalpel would suffice,” TikTok wrote in its brief. “It ordered the closure of one of the largest speech platforms in the United States and left petitioners (and the public) guessing as to why a wide range of less restrictive speech alternatives were ignored. The First Amendment demands much more.”
