Washington — A new challenge to the control of TikTok by its Chinese parent company ByteDance unfolded in federal court on Monday, with lawyers arguing that a U.S. law mandating the sale of the short-video app or facing a ban infringes on constitutional rights. The legal confrontation, spotlighting issues of national security and free speech, drew attention as the case opened at the U.S. Court of Appeals for the District of Columbia.
The legislation in question, recently signed by President Joe Biden, roots its justification in national security apprehensions due to the vast American user base of TikTok, estimated at 170 million. The court heard points suggesting that Chinese influence over the platform poses a potential threat, based on the data it gathers.
Andrew Pincus, representing TikTok, contended that the law preemptively censors the platform based on speculative future risks, thereby violating free speech rights. He emphasized that TikTok operates as a U.S. entity and that its corporate registration is based in the Cayman Islands, rather than China.
Chief Judge Sri Srinivasan pointed out, however, that despite its registration, TikTok still falls under Chinese jurisdiction, complicating its defense under the First Amendment. Pincus proposed alternative, less restrictive measures to address security concerns, such as increased transparency about data handling and content moderation processes.
During the hearing, Daniel Tenny from the Justice Department underscored the risks associated with the extensive data collected by TikTok, suggesting its potential utility in foreign intelligence operations. He argued that the crux of the legislative action was to prevent covert foreign influence, facilitated by TikTok’s algorithms, largely developed in China. The intent, according to Tenny, was not to stifle free speech but to guard against hidden manipulations.
Jeffrey Fisher, speaking on behalf of several TikTok content creators, defended their right to choose their publishing platforms, asserting that the content created and shared by Americans on TikTok represents American speech, not Chinese.
The judges, during the proceedings, also addressed two years of stalled negotiations between TikTok and the U.S. government over a national security plan. Senior Circuit Judge Douglas Ginsburg noted these failed efforts, highlighting that the legislative approach was a direct consequence of this deadlock.
As arguments concluded, both ByteDance and groups of TikTok users who oppose the law expressed their concerns about the implications of a forced sale on free expression and innovation. They stressed the platform’s unique role in the digital ecosystem and its importance to creators who rely on it for their livelihoods.
The court’s decision, expected by the end of the year, will determine whether the law takes effect in January 2025 as scheduled. The outcome will likely be swiftly appealed, indicating that the ultimate resolution might involve the U.S. Supreme Court.
This legal battle unfolds against a backdrop of broader discussions about data privacy, content regulation, and the global influence of social media platforms. It not only involves TikTok but also sets a precedent that could affect how the U.S. approaches the regulation of technology companies owned by foreign entities, particularly those from geopolitical rivals.
As stakeholders continue to watch the developments closely, the case represents a significant test of the balance between national security imperatives and the principles of free expression in the age of digital media.