NEW YORK — Legislation forcing TikTok’s parent company to sell the video-sharing platform or risk a ban in the US was officially signed by President Joe Biden on Wednesday. But the newly enacted law could face an uphill battle in court.
Critics of the sell-or-become ultimatum claim it violates TikTok users’ First Amendment rights. The app’s China-based owner, ByteDance, has already promised to file a lawsuit, calling the measure unconstitutional.
But the success of a lawsuit is not guaranteed. The law’s opponents, including advocacy groups like the American Civil Liberties Union, argue that the administration has not yet come close to justifying a ban on TikTok, while others say national security claims still can gain the upper hand.
For years, lawmakers on both sides of the aisle have raised concerns that Chinese authorities could force ByteDance to hand over U.S. user data, or influence Americans by suppressing or promoting certain content on TikTok. The US has yet to publicly provide evidence to support these claims, but some legal experts note that political pressure has mounted anyway.
If upheld, legal experts also emphasize that the law could set a precedent with broader implications for digital media in the US.
Here’s what you need to know.
That is the central question. TikTok and opponents of the law have argued that a ban would violate the First Amendment rights of the social media platform’s 170 million U.S. users.
Patrick Toomey, deputy director of the ACLU’s National Security Project, said a TikTok ban would “stifle free speech and limit public access” to a platform that has become a central source for sharing information .
One of the key questions will be whether the legislation disrupts the overall content of speech on TikTok, notes Elettra Bietti, an assistant professor of law and computer science at Northeastern University, because content-based restrictions face a higher level of scrutiny to fulfil.
ByteDance had not filed an official lawsuit as of late Wednesday, but Bietti said she expects the company’s challenge will focus on whether a ban infringes on these broader free speech rights. Additional lawsuits could also arise involving TikTok’s “commercial actors,” such as companies and influencers who make their living on the platform, she added.
TikTok expresses confidence about the prospects of its planned challenge.
“Rest assured, we’re not going anywhere,” TikTok CEO Shou Chew said in a video response to X Wednesday. “The facts and the Constitution are on our side, and we expect to prevail again.”
Toomey also said he is optimistic about the possibility that TikTok can block the measure in court, noting that both users and the company have “extremely strong” First Amendment claims.
“Many of the calls to completely ban TikTok in the US are about political point scoring and are rooted in anti-China sentiment,” Toomey added. “And until now, these moves to ban TikTok have not been remotely supported by any concrete public evidence.”
Yet the future of any process is difficult to predict, especially when it comes to these types of issues. And from a legal perspective, legal experts say it can be difficult to cite political motivations, even if they are well documented, as grounds to invalidate a law.
The battle could also continue for some time, with the possibility of appeals that could go all the way to the Supreme Court, which would likely uphold the law because of its current makeup, said Gus Hurwitz, a senior fellow at the University of Pennsylvania. Carey Law School.
TikTok’s legal challenge won’t go through without a fight. The administration is likely to respond with national security claims, which were already prominently cited as the legislation passed through Congress.
Toomey argues that the government has not met the high bar required to prove imminent risks to national security, but some other legal experts note that this is still a strong card to play.
“One of the unfortunate and really frustrating things about national security legislation is that it is often a trump card,” Hurwitz said. “Once national security issues are raised, they will prevail whether they are successful or not.”
Hurwitz added that he thinks there are legitimate national security arguments that could be made here. National security could be called into question because it is a federal measure, he added. That sets this scenario apart from previously failed state-level legislation seeking to ban TikTok, such as in Montana.
But national security arguments are also vulnerable to the question of why TikTok is specifically under scrutiny.
“I personally believe that what TikTok does is not that different from other companies based in the US,” Bietti said, pointing to tech giants ranging from Google to Amazon. “The question is, ‘Why ban TikTok and not the activities and surveillance of other companies in the United States?’”
Still, legal experts note that there could be future consequences beyond TikTok.
The measure was passed as part of a larger $95 billion package that provides aid to Ukraine and Israel. The package also includes a provision that makes it illegal for data brokers to sell or rent “personally identifiable sensitive data” to North Korea, China, Russia, Iran, or entities in those countries.
That has met some resistance, including from the ACLU, which says the language is written too broadly and could encroach on journalists and others who publish personal information.
“There is real reason to be concerned that the use of this law will not stop at TikTok,” Toomey said. “Looking at that point and the bigger picture, banning TikTok or forcing its sale would be a devastating blow to the U.S. government’s decades-long effort to promote an open and secure global internet.”