The U.S. government and TikTok will face off in federal court on Monday, where oral arguments will begin. consistent lawsuit that will determine whether – and how – a popular social media platform used by nearly half of all Americans will continue to operate in the country.
Lawyers for both sides are appearing before a panel of judges at the federal appeals court in Washington. TikTok and its China-based parent company ByteDance are challenging a U.S. law that requires them to sever ties or face a U.S. ban by mid-January. The legal battle is expected to reach the U.S. Supreme Court.
The law, signed by President Joe Biden in April, was the culmination of a years-long saga in Washington via the short video sharing app that the government is seen as a threat to national security because of its connections to China. But TikTok argues that the law conflicts with the First Amendment while other opponents argue that it resembles the repressive measures sometimes seen in authoritarian countries abroad.
In court documents filed over the summer, the Justice Department highlighted the government’s two primary concerns. First, TikTok collects vast amounts of user data, including sensitive information about viewing behaviorthat could end up in the hands of the Chinese government through coercion. Second, the U.S. says the patented algorithm that determines what users see on the app is vulnerable to manipulation by Chinese authorities, who could use it to shape content on the platform in ways that are difficult to detect.
TikTok has repeatedly said it does not share U.S. user data with the Chinese government and that the concerns the government has raised have never been substantiated. In court documents, lawyers for both TikTok and its parent company have argued that members of Congress sought to punish the platform based on propaganda they believe was on TikTok. The companies also argued that divestment is impossible and that the app would be forced to shut down by Jan. 19 unless the courts step in to block the law.
“Even if divestment were feasible, TikTok would still be reduced to a shell of its former self in the United States, stripped of the innovative and expressive technology that tailors content to each user,” the companies said in a legal document filed in June. “It would also become an insular entity, preventing Americans from exchanging views with the global TikTok community.”
Opponents of the law point out that a ban would also cause disruption in the world of marketing, retail and the lives of many different content creators, some of whom has also sued the government in May. TikTok is covering legal fees for that lawsuit, which the court consolidated with the company’s complaint and another complaint filed on behalf of conservative creators working with a nonprofit called BASED Politics Inc.
While the government’s primary reasoning for the law is public, significant portions of the court documents contain classified information that has been redacted and hidden from the public. The companies have asked the court to throw out the classified documents or appoint a district judge to review the material, which the government opposes because it would delay the case. If these classified documents are admitted to court, legal experts say it could be nearly impossible to know some of the factors that could play a role in the final ruling.
In one of the redacted statements filed in late July, the Justice Department alleged that TikTok had followed directions from the Chinese government regarding content on its platform, without providing additional details about when or why the incidents occurred. Casey Blackburn, a senior U.S. intelligence official, wrote in a legal brief that ByteDance and TikTok “took action in response” to Chinese government demands “to censor content outside of China.” While the intelligence community had “no information” that this had happened on TikTok’s platform in the U.S., Blackburn said there was a risk it “could” happen.
In a separate document filed with the court, the Justice Department said the U.S. “is not required to wait for its foreign adversary to take specific harmful actions before responding to such a threat.”
However, the companies believe the government could have taken a more tailored approach to address their concerns.
During high-stakes negotiations with the Biden administration more than two years ago, TikTok presented the government with a draft of a 90-page agreement that would allow a third party to monitor the platform’s algorithm, content moderation practices and other programming. TikTok says it has spent more than $2 billion to voluntarily implement some of the measures, including storing U.S. user data on servers run by tech giant Oracle. But it says a deal was not reached because government officials actually walked away from the negotiating table in August 2022.
Justice Department officials have argued that complying with the draft agreement would be impossible or resource-intensive due to TikTok’s size and technical complexity. The Justice Department also said the only thing that would address the government’s concerns would be to cut ties between TikTok and ByteDance, given the porous relationship between the Chinese government and Chinese companies.
But some observers have questioned whether such a move would accelerate the so-called “decoupling” between the US and its strategic rival, while other China-founded companies such as Shein and Temu are also causing a stir in the West. Last week, the Biden administration proposed rules that take stricter action against duty-free products shipped directly from China.
For its part, ByteDance has publicly said that TikTok is not for sale. But that hasn’t stopped some investors, including former Treasury Secretary Steven Mnuchin and billionaire Frank McCourt, from announcing bids to buy the platform. But even if such a sale were to happen, it would likely be without TikTok’s coveted algorithm, raising questions about whether the platform would be able to deliver the type of personalized videos that users expect.
Political positions on this issue are expressed in unconventional ways.
The law, which passed with bipartisan approval in Congress, drew opposition from some progressive and Republican lawmakers who raised concerns about giving the government the power to ban a platform used by 170 million Americans. Former President Donald Trump, who tried to ban TikTok when he was in office, now opposes a ban because it would help rival Facebook, a platform Trump continues to criticize for his loss in the 2020 election.
In court, free speech and social justice groups have filed amicus curiae briefs in support of TikTok, arguing that it abridges users’ First Amendment rights and stifles the speech of minority communities by disrupting a tool many of them use to advocate for causes online. Some libertarian groups with ties to ByteDance investor Jeff Yass have also filed briefs in support of the company.
Meanwhile, the Biden administration has secured support from more than two dozen Republican attorneys general, former national security officials and China-aligned human rights groups who are asking the court to uphold the law.