TikTok faced off against the US government in federal court on Monday, arguing that legislation that could ban the platform within months is unconstitutional, but the Justice Department said the legislation is necessary to eliminate national security risks posed by popular social media companies.
For more than two hours before a three-judge panel at the federal appeals court in Washington, lawyers and content creators on both sides were forced to present their best arguments for and against a law that would force the companies to end their ties by mid-January or risk losing one of the world's largest markets.
Andrew Pincus, a veteran lawyer representing both companies, argued in court that the law unfairly targets TikTok's U.S. subsidiary, TikTok Inc., because it is a U.S. company, and violates the First Amendment. Pincus' comments were followed by another lawyer representing content creators also challenging the law, who argued that the law violates U.S. speech rights and is akin to banning Americans from posting stories on foreign-owned media outlets such as Politico, Al Jazeera and Spotify.
“The law before this court is unprecedented and its impact will be enormous,” Pincus said, adding that the law would impose restrictions on speech based on future risks.
The bill, signed by President Joe Biden in April, marks the culmination of a years-long battle in Washington over the short-video sharing app, which the government considers a national security threat because of its ties to China.
The United States has said it is concerned that TikTok collects vast amounts of user data, including sensitive information about viewing habits, that could be coerced into the hands of the Chinese government. Officials have also warned that the proprietary algorithms that determine what users see on the app are vulnerable to manipulation by Chinese authorities, who could use them to shape content on the platform in ways that are hard to detect.
Justice Department lawyer Daniel Tenney acknowledged in court that the data collection is useful for many companies for commercial purposes, such as targeting advertising and creating videos tailored to users' interests.
“The problem is that that same data is extremely valuable to foreign adversaries who seek to undermine U.S. national security,” he said.
Pincus, TikTok's lawyer, said Congress should have erred in uncovering potential propaganda on the platform rather than pursuing a divestment-or-ban approach. The companies argue that a divestment-or-ban approach would only lead to bans. He also said lawmakers' comments before the bill's passage show they were motivated by the propaganda they perceived to be on TikTok, specifically the imbalance between pro-Palestinian and pro-Israeli content on the platform during the Gaza conflict.
But the committee, made up of two Republicans and one Democrat, expressed skepticism, pressing TikTok's lawyers on whether they believed the government had leeway to restrict major media companies controlled by foreign entities in hostile countries. As part of a question about TikTok's foreign ownership, the justices asked whether the arguments presented would also apply if the United States was at war.
Judge Neomi Rao, an appointee of former President Donald Trump, said the creators suing over the law could continue to speak on TikTok even if the company is sold or they choose to post their content on other platforms. But their lawyer, Jeffrey Fisher, argued that there is no “interchangeable medium” for them because TikTok, with 170 million U.S. users, is unique in its look, feel and the type of audience it can reach.
Paul Tran, one of the content creators suing the government, told reporters outside court on Monday that the skin-care company he founded with his wife in 2018 was struggling until he started making TikTok videos three years ago. He said he tried promoting his products through traditional advertising and other social media apps, but only his TikTok videos got more views, attracted so many orders that their products sold out and led to them appearing on TV shows.
“TikTok really reinvigorated our company and saved it from collapse,” Tran said.
He noted that a company called Love & Pebble sells more than 90% of its products through TikTok, and that TikTok is covering creators' legal costs.
Later in the hearing, the committee pressed the Department of Justice about a First Amendment challenge to the law.
The court's chief justice, Sri Srinivasan, who was appointed by former President Barack Obama, said efforts to block government action to manipulate content would raise alarm bells and affect people who receive voice on TikTok. Tenney, the Justice Department lawyer, countered that the law doesn't target TikTok users or creators and would only affect them indirectly.
TikTok, meanwhile, has repeatedly maintained that it does not share U.S. user data with the Chinese government and that the concerns raised by the Chinese government have never been substantiated. In their lawsuits, TikTok and ByteDance also argue that divestment is not possible, and that even if it were possible, TikTok would be left as it were, since it would lose the technology that powers it.
While the government's main reasons for enacting the law have been made public, significant portions of court filings contain redacted information.
In one redacted statement filed in late July, the Justice Department alleged that TikTok received direction from the Chinese government about content on its platform, but did not provide details about when or why those incidents occurred. Casey Blackburn, a senior U.S. intelligence official, wrote in a legal statement that ByteDance and TikTok “took action in response to requests from the Chinese government to censor content outside of China.” While the intelligence community has “no information” that anything like this has happened on TikTok's U.S.-run platform, Blackburn said it could happen.
But the businesses argue the government could have taken a better approach to address their concerns.
During key negotiations with the Biden administration more than two years ago, TikTok presented the government with a 90-page proposed agreement that would have allowed third parties to monitor the platform's algorithms, content moderation practices and other programming, but no deal was reached after government officials effectively walked away from the negotiating table in August 2022, the company said.
Law enforcement officials argue that complying with the proposed agreement would be impossible or too resource-intensive because of the platforms' size and technical complexity, and that the only way the government's concerns could be resolved would be to sever ties between TikTok and ByteDance, they say.
