Fifteen minutes.
That’s how much time TikTok will have this week to dissuade a federal appeals court from supporting a possible US ban of its social media app, which is used by 170 million Americans.
Those 15 minutes could well be the most significant of TikTok’s US existence. The company is fighting for survival in the face of a law, signed by President Joe Biden, whose key provisions could kick in as soon as January.
The law Biden signed seeks to ban TikTok on Americans’ personal devices unless its Chinese parent company, ByteDance, quickly sells TikTok to someone else — which may effectively end the app as we currently know it.
As the deadline nears for a potential ban, TikTok and ByteDance have gone to court asking for the law to be blocked and declared unconstitutional on First Amendment grounds.
TikTok will not get the luxury of a full trial to argue for its continued existence in its current form.
That’s because the law in question requires any legal challenge to bypass federal district court and go straight to the US Court of Appeals for the District of Columbia Circuit within a tight timeframe. A three-judge panel will hear the case and decide, likely in a matter of weeks, whether the law is constitutional.
On Monday at 9:30 a.m. ET, the companies will make their case in oral arguments. TikTok will have just a few minutes to make an impact. But it won’t be alone: A group of TikTok creators also suing the Biden administration will go next, with 10 minutes to speak. And the Biden administration will wrap it up with its own 25-minute presentation.
With each side of the debate allotted roughly a half-hour, TikTok and its allies will try to explain why the court should reject the law and prevent it from being enforced. DOJ attorneys will explain why a potential TikTok ban or forced sale — or as they will likely put it, a “qualified divestiture” — is the only way to keep American users safe.
Hearing the case will be Chief Judge Sri Srinivasan, an Obama appointee, along with Judge Neomi Rao, who was appointed by former President Donald Trump, and Judge Douglas Ginsburg, a Reagan appointee.
The key question facing Monday’s panel: Is the hypothetical risk of Chinese spying through TikTok enough of a national security threat that it justifies a federal law that may infringe on Americans’ constitutional free-speech rights?
It’s not clear when the court could reach a decision on whether to block the legislation. But the law sets out a deadline of Jan. 19 for TikTok, so it is probable the court may rule before then.
Fast-tracked through Congress this spring with uncommon speed, the legislation is a US response to fears that TikTok’s China ties could allow that country’s government to access American users’ app data, such as which videos they have watched, liked, shared or searched for.
The measure has become a symbol of bipartisan opposition to China. But for TikTok’s supporters, including some of its most prominent content creators, the law smacks of racism and anti-China hysteria. They argue it does little to address other, potentially even more sensitive, sources of data freely available on commercial marketplaces.
The outcome of the case won’t just determine the fate of TikTok in the United States. It could also have ripple effects for the way courts interpret the First Amendment — which guarantees against the government prohibiting freedom of expression — and its relationship to digital speech and online platforms writ large.
TikTok argues the potential ban violates the First Amendment because it stifles the ability for its US users to express themselves and to access information. And it alleges the law is unconstitutionally extreme when the government had other options to address fears about TikTok’s links to China.
Court filings show that TikTok and US national security officials had hammered out a draft proposal to address the security concerns. That agreement included the ability for the US government to shut down TikTok if it violated the proposed deal. Some of the deal’s provisions TikTok has already publicly implemented as part of an initiative called Project Texas, which involves moving US user data onto servers controlled by the American tech giant Oracle and erecting additional organizational barriers between TikTok and ByteDance.
But, TikTok claims, US officials abruptly abandoned the plan with no explanation. (The US government has subsequently described the plan in its court filings as “inadequate” because officials feared it would be hard to detect whether TikTok were violating the agreement.)
TikTok has also claimed that it is technologically impossible to separate its app from its parent company. For starters, it said in a court filing, the TikTok app depends on software code that’s built by ByteDance, and there is no way to simply copy that code to another company with any expectation that it will run.
For another, the company argues, the Chinese government most likely won’t allow TikTok’s recommendation algorithm to be sold to a non-Chinese company. The recommendation engine is TikTok’s secret sauce and what powers its popularity; without it, the app loses its most distinctive feature.
Last year, the Chinese government said it would “firmly” oppose a potential sale of TikTok from ByteDance, following new export controls the country announced that affect the transfer of certain software algorithms.
TikTok has portrayed the US law as a sweeping congressional power grab that threatens all Americans’ speech rights.
“If Congress can do this,” the company wrote in its filings, “it can circumvent the First Amendment by invoking national security and ordering the publisher of any individual newspaper or website to sell to avoid being shut down.”
Finally, TikTok claims, the US government has never proven that the Chinese government has exploited US user data to justify the law.
“Even the statements by individual Members of Congress and a congressional committee report merely indicate concern about the hypothetical possibility that TikTok could be misused in the future, without citing specific evidence — even though the platform has operated prominently in the United States since it was first launched in 2017,” the company wrote. “Those speculative concerns fall far short of what is required when First Amendment rights are at stake.”
The US government has argued in its own filings that lawmakers are free to take action “even if all of the threatened harms have not yet broadly materialized or been detected.”
The Chinese government has the incentive and the ability to pressure ByteDance to hand over TikTok user data, the Biden administration has said, adding that the information could be useful for intelligence purposes or for manipulating the public through disinformation campaigns.
The United States, for its part, also routinely requests user data from social media companies. But there are typically checks and balances on the government, such as laws limiting what intelligence officials can do with data about US citizens or, for domestic law enforcement, requirements that authorities obtain a court order in exchange for user data — orders that tech companies can and often do challenge, even if they can’t always disclose it.
“TikTok’s parent company and recommendation algorithm are based in China,” the Justice Department wrote in a court brief, “giving rise to the risk that a foreign adversary will wield TikTok’s enormous power to advance its own interests, to the detriment of U.S. national security.”
The US government has also insisted the law is not a ban as it technically provides a way for TikTok to avoid one by simply finding a new owner within about six months.
Independent cybersecurity experts have said that the risk of Chinese spying through TikTok sounds plausible but remains unproven.
China’s intelligence laws require companies with a presence there to help with that country’s intelligence objectives. TikTok does not operate in China, but ByteDance does, meaning it is subject to China’s laws — and the Chinese government holds a board seat on ByteDance’s local Chinese subsidiary. The question is whether all that amounts to enough influence over ByteDance and TikTok to gain access to US TikTok users’ data, in spite of the guardrails promised by Project Texas.
The case has attracted immense attention, prompting friend-of-the-court briefs from more than a dozen US states, the House select committee on China that drafted the law, former US national security officials, business and civil rights groups, and a former chairman of the Federal Communications Commission.
The law in question “plainly raises the issue of political bias and motivation, singling out TikTok because of its foreign ownership even as other major social media platforms raise similar privacy and content-moderation issues,” wrote a coalition of digital rights groups in a filing.
But former national security officials wrote that TikTok user data, if combined with other information Beijing has collected through hacks and leaks, could be a potent intelligence risk.
The Chinese government, wrote the group that includes former National Cyber Director Chris Inglis, “can exploit this massive trove of sensitive data to power sophisticated artificial intelligence (AI) capabilities that can then be used to identify Americans for intelligence collection, to conduct advanced electronic and human intelligence operations, and may even be weaponized to undermine the political and economic stability of the United States.”
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