May 9, 2024
NEW YORK, SAN FRANCISCO – TikTok and ByteDance, in a lengthy lawsuit filed Tuesday in US federal court, stated, “For the first time in history, Congress has enacted a law that subjects a single, named speech platform to a permanent, nationwide ban.”
With the suit, TikTok and ByteDance, its Beijing-based parent company, are seeking to block an act signed by President Joe Biden that would force the divestiture of the app used by 170 million Americans, or ban it.
The companies filed the 77-page petition titled, “TIKTOK INC., and BYTEDANCE LTD., V. Petitioners, MERRICK B. GARLAND, in his official capacity as Attorney General of the United States, Respondent”.
The suit was filed in the US Court of Appeals for the District of Columbia Circuit, and it argues that the law violates the Constitution, including First Amendment free speech protections.
The law, called the “Protecting Americans From Foreign Adversary Controlled Applications Act”, was signed by Biden on April 24 after it easily passed the House of Representatives and the Senate. It gives ByteDance until Jan 19 to sell TikTok or face a ban.
“Banning TikTok is so obviously unconstitutional, in fact, that even the Act’s sponsors recognized that reality, and therefore have tried mightily to depict the law not as a ban at all, but merely a regulation of TikTok’s ownership,” the suit says.
The lawsuit said that divestiture “is simply not possible: not commercially, not technologically, not legally. … There is no question: the Act (law) will force a shutdown of TikTok by January 19, 2025, silencing the 170 million Americans who use the platform to communicate in ways that cannot be replicated elsewhere.
“The Act does not articulate any threat posed by TikTok nor explain why TikTok should be excluded from evaluation under the standards Congress concurrently imposed on every other platform,” the suit stated.
“Even the statements by individual Members of Congress and a congressional committee report merely indicate concern about the hypothetical possibility that TikTok could be misused in the future, without citing specific evidence — even though the platform has operated prominently in the United States since it was first launched in 2017. Those speculative concerns fall far short of what is required when First Amendment rights are at stake.”
The White House has said it wants to see Chinese-based ownership ended on national security grounds, but not a ban on TikTok itself.
The Biden administration declined to comment on the lawsuit.
“Anything that the US government does not like becomes a threat to national security. It’s an overall excuse to cover everything. Simply by calling it a ‘national security’ issue, they feel that they can justify taking any action whatsoever,” George Koo, a retired international business adviser in Silicon Valley, California, told China Daily.
“For TikTok to take on the United States government at the US court system is very much the last measure and whether they will get a fair hearing and fair justice remains to be seen. But I wouldn’t be surprised if TikTok fails in their lawsuit,” he said.
“I think if TikTok is forced to divest the Chinese ownership, they (will threaten) to just leave the US altogether. And I hope that they will do that because that will be a very unpopular move for the young people, for the 170 million fans of TikTok,” Koo said.
The app is immensely popular with young people, many of whom make money through it.
TikTok has spent $2 billion to implement measures to protect the data of US users and made additional commitments in a 90-page draft National Security Agreement developed through negotiations with the Committee on Foreign Investment in the United States (CFIUS), according to the lawsuit.
TikTok also has agreed to a “shut-down option” that would give the US government the authority to suspend TikTok in the US if it violates some obligations.
TikTok has denied that it has or ever would share Americans’ user data, accusing US lawmakers of advancing “speculative” concerns.
The act also prohibits app stores from offering TikTok and bars internet hosting services from supporting it unless ByteDance divests.
The suit said the Chinese government “has made clear that it would not permit a divestment of the recommendation engine that is a key to the success of TikTok in the United States”.
Fifty-eight percent of ByteDance is owned by global institutional investors, including BlackRock, General Atlantic and Susquehanna International Group; 21 percent by the company’s founder, and 21 percent by employees — including about 7,000 Americans, the suit stated.
In August 2022, CFIUS stopped engaging in meaningful discussions about the agreement, and in March 2023, CFIUS “insisted that ByteDance would be required to divest the US TikTok business”, the suit said.
CFIUS is an interagency committee, chaired by the US Treasury Department, which reviews foreign investments in American businesses and real estate on national security grounds.
In 2020, then-president Donald Trump was blocked by the courts in his bid to ban TikTok and China’s WeChat, a unit of Tencent, in the US.
Trump, the Republican candidate challenging Biden in the Nov 5 US election, has since reversed course, saying he does not support a ban.
Biden could extend the Jan 19 deadline by three months if he determines ByteDance is making progress toward a sale. The lawsuit also mentioned that Biden’s presidential campaign continues to use TikTok, which “undermines the claim that the platform poses an actual threat to Americans”.
Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, expects TikTok’s challenge to succeed.
“The First Amendment means the government can’t restrict Americans’ access to ideas, information, or media from abroad without a very good reason for it — and no such reason exists here,” Jaffer said in a statement.
On Monday, TikTok CEO Shou Chew was the honorary chair of the Metropolitan Museum of Art’s Costume Institute Benefit in New York.