TikTok and DOJ Seek Dec. 6 Ruling on Ban as Supreme Court Review Looms

US-On Monday, a lawyer representing TikTok and its Chinese parent company, ByteDance, argued before a federal appeals court that a U.S. law set to ban the popular short video app on January 19, 2024, infringes on free speech rights. The lawyer’s effort aimed to persuade the court to block the law.

A three-judge panel from the U.S. Court of Appeals for the District of Columbia reviewed the case, which TikTok and ByteDance initially filed in May, seeking an injunction to stop the law from taking effect.

During the two-hour hearing, Justice Department attorney Daniel Tenny defended the government’s position, asserting that TikTok’s Chinese ownership poses a national security risk due to its access to extensive personal data on Americans. Tenny argued that this data could potentially be used by China to subtly influence the information Americans see on the app.

In response, Andrew Pincus, representing TikTok and ByteDance, countered that the government had not provided concrete evidence that TikTok actually threatens national security. Pincus also claimed that the proposed ban violates several aspects of the U.S. Constitution, particularly the First Amendment’s protection of free speech.

“The law before this court is unprecedented, and its effect would be staggering,” Pincus told the judges, saying “for the first time in history, Congress has expressly targeted a specific U.S. speaker banning its speech and the speech of 170 million Americans.”

The law gives ByteDance until Jan. 19 to sell or divest TikTok’s US assets or face a ban in the United States. Driven by worries that China could access data on Americans or spy on them with the app, the U.S. Congress passed the measure with overwhelming support and President Joe Biden signed it into law in April.

The lawsuit argued that upholding the statute would set a precedent where Congress could bypass First Amendment protections by citing national security concerns, potentially forcing the sale of any newspaper or website to avoid being shut down.

Daniel Tenny defended the law by highlighting the challenges of monitoring TikTok’s vast and frequently updated code. He argued that detecting malicious changes in TikTok’s software—given its size and complexity—is nearly impossible, and emphasized that the extensive and uncontrolled nature of activities in China presents a significant national security threat.

Judge Neomi Rao noted that reviewing TikTok’s source code could take years and questioned how disclosure could be effectively managed, especially given the constant updates. She remarked that TikTok’s arguments seemed to treat Congress as if it were an executive branch agency rather than a legislative body that passed a law.

Judge Douglas Ginsburg drew a comparison to existing U.S. laws that restrict foreign ownership of broadcast licenses and questioned what made this situation different.

Judge Sri Srinivasan raised a hypothetical scenario where the U.S. might be at war with China and queried whether Congress could then ban foreign ownership of major media outlets. Andrew Pincus acknowledged that Congress might have such power in a wartime context but pointed out that this justification was not included in the current legislation.

The law prohibits app stores like Apple (AAPL.O), opens new tab and Alphabet’s Google (GOOGL.O), opens new tab from offering TikTok and bars internet hosting services from supporting TikTok unless ByteDance divests TikTok by the deadline. Under the law, Biden could extend the deadline by three months if he certifies ByteDance is making significant progress toward a sale.

TikTok and the Justice Department have requested a decision by December 6, which would potentially enable the U.S. Supreme Court to review any appeal before the proposed ban takes effect.

This case unfolds in the final stages of the U.S. presidential campaign, with both Republican candidate Donald Trump and Democratic Vice President Kamala Harris using TikTok to engage with younger voters.

The White House has indicated a preference for ending Chinese ownership of TikTok due to national security concerns, but it does not support an outright ban. Trump, who previously attempted to ban TikTok in 2020, has stated that if re-elected, he would not impose a ban on the app.

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