After failing to stop a bill that could ban TikTok in the US unless it separates from its China-based owner ByteDance, the company now faces two big hurdles: the US judicial system and the Chinese government.
TikTok has promised to bring a legal challenge against the law that was signed by President Joe Biden on Wednesday, which requires ByteDance to divest the app within a year or face an effective ban in the US. Experts expect its main arguments to center on alleged violations of its own First Amendment rights and those of its 170 million US users. But it won’t be an easy fight since judges often hesitate to make decisions of national security importance where the legislature has so forcefully weighed in.
If the law stands, ByteDance will have to consider selling TikTok. But that’s not a decision it will be able to make entirely on its own. Due to export restrictions on technology developed in China, the company would need the Chinese government’s permission to sell the software that powers its recommendations and keeps users scrolling through the app for hours on end — in other words, what’s popularly described as its algorithm.
ByteDance might be able to sell things like the brand, content, and user base with a lesser level of oversight, though even that remains a question. And all of those things are far less valuable without the algorithm.
Weighing national security against the First Amendment
While TikTok hasn’t yet revealed how it plans to challenge the law, experts anticipate its arguments will largely hinge on the First Amendment, and the company has hinted at free expression issues in its messaging. In a video addressing TikTok users after Biden signed the foreign aid package that included the legislation, TikTok CEO Shou Chew called it “a ban on TikTok and a ban on you and your voice.”
TikTok would likely argue that the divest-or-ban law places an unacceptable restriction on its own rights to free expression and that of its users, who might separately or jointly file suit over the law. Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, said in a statement the law is “unconstitutional” because “
