TikTok and ByteDance are suing the US government over legislation that could ban the app, sparking a legal battle that could last until mid-2025.
TikTok and parent company ByteDance, headquartered in China, filed a lawsuit on May 7 with the District of Columbia Federal Court of Appeals, after President Joe Biden on April 24 signed into law the Protecting Americans from Apps Act. controlled by a foreign competitor (PAFACA). PAFACA forces Bytedance to divest capital in TikTok, otherwise this social networking platform will be banned in the US.
“For the first time in history, the US Congress has passed a law that can permanently ban a platform nationwide,” TikTok and ByteDance said in the lawsuit. PAFACA set a deadline for ByteDance to sell TikTok on January 19, 2025, which the White House can extend for another 90 days if the parties make “significant progress”.
TikTok filed a petition directly with the District of Columbia Federal Court of Appeals due to its “specialized jurisdiction” nature. specified in PAFACA. Accordingly, only this court has the authority to hear complaints related to the law. This is also considered the second highest court in the United States, after the Supreme Court, because it handles many cases affecting people across the country.
According to experts, the move shows that ByteDance has no intention of reselling TikTok shares and will start a long legal battle with the US government, which may require the US Supreme Court to get involved.
The TikTok logo displayed on a phone screen taken in August 2022. Image: Reuters
In the lawsuit, two companies ByteDance and TikTok accused the US government of issuing a “ban” on a social networking platform, violating the First Amendment in the US constitution on freedom of speech. They also argued that ByteDance’s divestment from TikTok is “commercially, technologically and legally impossible”.
“If TikTok is banned, the 170 million users in the US, who are using the platform to interact in ways not possible elsewhere, will be silenced,” the two companies said, adding that they would continue to provide service to US users during the litigation period.
Previously, the White House affirmed that the US government did not want to ban TikTok, and that PAFACA was only an ownership regulation for TikTok, ensuring the company no longer had contact with ByteDance because of national security issues.
President Joe Biden’s administration believes that the ownership of TikTok by a China-based company like ByteDance will threaten US security, because user data is at risk of being transferred to Beijing under government orders. Chinese government. Both ByteDance and TikTok deny this allegation.
TikTok has been warned by the US government for many years, when relations between Washington and Beijing were tense over many issues. In August 2020, then-US President Donald Trump signed an executive order requiring TikTok to cut ties with ByteDance within 45 days or be banned in the US. TikTok sued in the District of Columbia Federal Court and won with the argument that Mr. Trump’s executive order violated the First Amendment right to freedom of speech.
“If PAFACA is also viewed as a ban on free speech, it will face significant skepticism from the courts,” said Timothy Zick, professor of constitutional studies at William & Mary Law School. , speak.
This time TikTok also believes that the law affects American content creators who are benefiting economically from the platform. Regarding data security concerns, the company once responded that it spent more than $2 billion to separate operations in the US from China. American user data is stored on US territory, by an American company and supervised by American employees, and is not transferred to China as feared by the White House.
This legal battle will put the Biden administration at a number of disadvantages, because the White House will have to release confidential and sensitive information to explain why PAFACA is necessary and reasonable. US officials warn that TikTok’s algorithm poses a threat and could be used by the Chinese government for large-scale influence campaigns on the American public, but have not provided evidence.
“When it comes to political debate, Congress asserts that restricting China’s access to US user data is beneficial to national security,” Zick said. “But in court, the US government will have to provide evidence that these concerns are real, not speculation. The White House must also explain why it cannot and does not pursue a less coercive option. more restrained”.
TikTok supporters gathered outside Capitol Hill, Washington on March 13. Image: AFP
However, some experts say PAFACA has elements that could help the White House win the legal battle and that the Supreme Court may be willing to value national security over protecting free speech.
“Last time, TikTok won its lawsuit against Mr. Trump’s executive order, but this time the bill passed bipartisan Congress, which may make it easier to persuade judges,” Gautam Hans, professor of said a lawyer at Cornell University, New York state. “However, because there is no public information about the risks to US national security, it is difficult for the court to confirm the validity of such an unprecedented law.”
TikTok supporters praised the company’s legal move. “TikTok challenging the law is important, and we expect them to succeed,” said Jameel Jaffer, executive director of the Knight Institute for the First Amendment, Columbia University, New York.
According to Jaffer, the First Amendment means the government cannot restrict Americans’ access to ideas, information or communications from outside without providing a suitable reason. “And there is no such reason in this case,” Jaffer added.
Matthew Schettenhelm, an analyst with Bloomberg Intelligence, said that the District of Columbia Federal Court of Appeals could speed up the processing and issue a verdict soon. If TikTok decides to appeal, the Supreme Court could hear it and issue a ruling in the second quarter of 2025.
“We think TikTok has a 30% chance of winning and the Supreme Court will issue the first ruling in the fourth quarter of next year,” according to Schettenhelm. “The White House has a better chance of winning the case, because the District of Columbia federal court judges are not experts on national security and they will defer to Congress unless there is clear evidence that the First Amendment violated”.