Tiktok Logo and Office US
National Security Concerns and Legislative Actions
TikTok and its China-based parent company ByteDance Ltd. have argued that the US government could have implemented less restrictive measures than banning the app to address national security concerns. In a recent court filing, the company stated that it had negotiated a comprehensive 90-page national security agreement with the federal government to provide “multi-layered safeguards and enforcement mechanisms.” However, Congress disregarded this groundwork when enacting the TikTok ban earlier this year.
Following President Joe Biden's signing of a provision into law that will ban TikTok if ByteDance doesn’t divest it by January 19, TikTok and its content creators launched legal challenges. The ban was enacted rapidly after classified briefings suggested that China could access US user information and potentially use TikTok to influence American citizens.
TikTok maintains that there is no evidence to support claims that the app poses a national security threat. The Justice Department responded, asserting that the legislation addresses critical national security concerns while respecting the First Amendment and other constitutional limitations. They emphasized the threat posed by autocratic nations that could weaponize technology, including apps and software, to gather sensitive data in secret.
Efforts to Mitigate Risks
In its brief, TikTok mentioned that it spent over a year negotiating an agreement with the US to minimize any risks to national security. The agreement included provisions for significant financial penalties and the potential shutdown of TikTok in the US if the company violated its terms. Despite these efforts, the US government abruptly ceased negotiations in early 2023, demanding that TikTok divest its US business.
TikTok's collaboration with Oracle Corp. to safeguard user information was insufficient to appease lawmakers. According to Senate Intelligence Committee Chairman Mark Warner, TikTok’s algorithm, source code, and back-end support remain in China, justifying the call for divestment.
Legal Arguments and Economic Impact
TikTok’s legal filing against Attorney General Merrick Garland argued that the ban infringes on free speech rights and negatively impacts those who rely on the platform for their livelihood. TikTok described the Act as unprecedented, highlighting that never before has Congress targeted and shut down a specific speech forum, thereby silencing significant speech in a single act.
The brief also claimed that it is not “possible technologically, commercially, or legally” for ByteDance to divest TikTok. Even if feasible, the platform in the US would be reduced to a mere shadow of its former self, lacking the innovative technology that tailors content to each user.
The Justice Department has until July 26 to respond to TikTok’s arguments. The DC Circuit panel has set an expedited schedule, as TikTok requested a decision by December 6 to allow sufficient time for an emergency review by the Supreme Court if necessary.
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