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Tiktok Challenges Us Ban In Court, Claims Act Unconstitutional

Declare the ‘Protecting Americans From Foreign Adversary Controlled Applications Act’ unconstitutional and order the Attorney General from enforcing the Act, asked TikTok social media platform in a plea before a US district court to overturn the ban on the platform in the country.

A little about the Act:

The aforementioned act, passed by the US House of Representatives on March 13, penalizes app stores in the US from listing TikTok or any other application developed or provided by the parent company ByteDance. While still a Bill document, the ‘Act’ as it is called, classifies ByteDance as a foreign adversary and addresses concerns of TikTok sharing US citizens’ data with Chinese authorities.

The Act also provides an alternative to a ban: a “qualified divestiture” of TikTok’s U.S. business. However, TikTok calls this an “illusory” alternative since divesting the business and “severing it from the globally integrated platform of which it is a part is not commercially, technologically, or legally feasible. For this reason, the company has filed a plea before the Columbia Circuit district court asking for a review of the constitutionality of the Act, stating that the Bill violates free speech, and equal protection, poses as a bill of attainder and violates constitutional taking of private property.

Earlier in 2023, White House proposed a bill to impose a ban on Tiktok over concerns that the app is being used to access the personal data of US citizens which can then be used by the Chinese government to spy on Americans or manipulate public opinion.

Act burdens TikTok’s speech rights:

TikTok pointed out that the US government acknowledged that “[w]hen [social media] platforms decide which third-party content to present and how to present it, they engage in expressive activity protected by the First Amendment because they are creating expressive compilations of speech.”

Yet, the Act burdens the company’s speech rights by determining any application operated by TikTok as a ‘foreign adversary-controlled application.’

“The President appears to lack the power to determine that a TikTok Inc.-owned application is “no longer being controlled by a foreign adversary” and has no “operational relationship” with “formerly affiliated entities that are controlled by a foreign adversary.” The Act therefore appears to conclusively eliminate TikTok Inc.’s ability to speak through its editorial and publishing activities and through its own account on the TikTok platform,” said the plea.

Similarly, the Act restricts the First Amendment rights of other ByteDance subsidiaries by prohibiting their editorial activities on US platforms.

No evidence that TikTok poses a risk to data security:

While arguing that the Act does lack a compelling interest, the company said that the US government has failed to show any evidence that TikTok poses risks to data security or the spread of foreign propaganda.

“The statements of congressional committees and individual Members of Congress during the hasty, closed-door legislative process preceding the Act’s enactment confirm that there is at most speculation, not “evidence,” said the plea, arguing that the Act relies solely on speculation.

Further, it pointed out that even after signing the Bill into law, President Joe Biden continues to maintain a TikTok account for his presidential campaign along with other Congressional supporters of the Act. TikTok argued such continued use of the platform by US officials “undermines the claim that the platform poses an actual threat to Americans.”

The plea goes on to say that even if the government could prove that a ByteDance-owned application “push[es] misinformation, disinformation, and propaganda on the American public,” there would still be not “compelling interest” in preventing Americans from hearing “disfavored speech” generated by TikTok users.

Further in the plea, it is argued that the Act applies only to TikTok Inc and certain other platforms that allow users to generate and view “text, images, videos, real-time communications, or similar content.” This means that the Act’s coverage depends on the “content” shown rather than whether an application collects users’ data. Accordingly, TikTok argued that there is “no necessary relationship between the Act’s scope and Congress’s apparent concern with risks to Americans’ data security, which could equally be posed by personal finance, navigation, fitness, or many other types of applications.”

The US government went back on negotiations with TikTok on national security:

TikTok pointed out that since 2019, the company has been involved in negotiations with the Committee of Foreign Investment in the United States (CFIUS) to come up with a set of measures that would resolve the government’s concerns about data security and purported propaganda related to TikTok. The agreement that was being worked on also gave the CFIUS a “shut-down option” to suspend the platform in the US in case of non-compliance. However, just as the agreement reached its final draft, TikTok alleged the US government stopped interactions with the platform in 2022.

“The terms of that negotiated package are far less restrictive than an outright ban. The negotiations have resulted in the draft National Security Agreement, which TikTok Inc. is already in the process of voluntarily implementing to the extent it can do so without government action,” said TikTok in the plea.

As part of this engagement, TikTok was also working on a $2 billion effort to build a system of technological and governance protections, referred to as “Project Texas,” to help safeguard U.S. user data and the integrity of the U.S. TikTok platform against foreign government influence. Yet, the company said that the US government never meaningfully explained why the National Security Agreement, which it argued was a far less restrictive alternative to a total ban. Pointing out that the draft National Security Agreement also seeks to find “any number of other less restrictive alternatives” TikTok asked the CFIUS to return to this agreement.

“CFIUS member agencies could return to working with Petitioners to craft a solution that is tailored to meet the government’s concerns and that is commercially, technologically, and legally feasible. Yet the government has not explained why the CFIUS process is not a viable alternative,” said TikTok.

Bill discriminates against TikTok and other ByteDance apps:

TikTok said the Act violates its rights under the equal protection component of the Fifth Amendment’s ‘Due Process Clause’ because it singles TikTok out for adverse treatment “without any reason for doing so.”

Specifically, the Act deems any application offered by TikTok to be a “foreign adversary controlled application” without notice or a presidential determination. Whereas other companies “controlled by a foreign adversary” are deemed to be so only after notice and a presidential determination that those companies present “significant threat[s]” to U.S. national security. This determination must also be supported by evidence submitted to Congress.

“The Act imposes none of those requirements as a precondition for burdening Petitioners’ speech — it levies that burden by unexplained legislative fiat,” said the plea.

Further, the petition noted that other companies “controlled by a foreign adversary” are exempt from the Act’s definition of a “covered company,” if they offer at least one application with the “primary purpose” of “allow[ing] users to post product reviews, business reviews, or travel information and reviews.”

“There is no conceivable reason for treating Petitioners differently than all other similarly situated companies. Even if Congress had valid interests in protecting U.S. users’ data and controlling what content may be disseminated through global platforms that would be advanced through the Act, there is no reason why those concerns would support a ban on Petitioners’ platforms without corresponding bans on other platforms,” said the plea.

Act fails to compensate TikTok for loss of business:

The company argued that the Act shut down ByteDance’s business in the US without just compensation, violating the Fifth Amendment’s Takings Clause.

“Absent a qualified divestiture, the Act will shutter Petitioners’ businesses in the United States. And even if a qualified divestiture were feasible (it is not), any sale could be, at best, completed only at an enormous discount to the U.S. businesses’ current market value, given the forced sale conditions,” said the plea.

Instead, petitioners alleged that the Act inflicts a regulatory taking considering the economic impact of the regulation (in this case, the ban), the extent of the regulation’s interference with “reasonable investment-backed expectations” and the character of the governmental action.

You can learn more about the US ban on TikTok and its implication on free speech in this video.

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