TikTok on the Chopping Block as Court Backs U.S. Ban

This blog has been updated to reflect recent developments.

TikTok boasts approximately 170 million monthly users in the United States alone. There are over a billion users worldwide. Even if you don’t use it, you’re probably at least somewhat familiar with the widely popular social media platform. It allows users to create, upload, and watch short video clips enhanced with text, voiceovers, and music.

And if you’re been following the news around the platform in the past year, you’ll know it’s been in a legal showdown with Uncle Sam. TikTok and its parent company, ByteDance filed a lawsuit earlier this year against the U.S. government to block a new law that mandates the sale of TikTok's American assets to a U.S. company by January 2025. A federal court has now ruled in favor of keeping the law.

Doubts About Data

TikTok is designed to keep users engaged by generating a continuous stream of videos tailored to individual viewer preferences, using a recommendation engine that analyzes user behavior and content metadata. The platform's recommendation engine, which plays a crucial role in content delivery, was originally developed by ByteDance, a company based in China. ByteDance is the parent company of TikTok and is incorporated in the Cayman Islands, although it has significant operations in China. This connection to China has raised national security concerns in the United States, given ByteDance's potential obligation to comply with Chinese laws that could require data sharing with the Chinese government.

TikTok collects vast amounts of user data, including device information, location data, and biometric identifiers. While a lot of data, this is not necessarily significantly more than other social media platforms collect. The concern is that this data could be accessed by the Chinese government due to ByteDance's ties to China, potentially allowing for espionage or blackmail. Uncle Sam is also worried about the possibility of the Chinese government manipulating content on TikTok to influence public opinion or political discourse in the States.

One worry is that this could serve to promote narratives beneficial to China's interests or sow discord within the U.S. This fear is exacerbated by the fact that such manipulation could occur covertly, making it difficult for users and regulators to detect. These concerns are compounded by China's broader strategy of leveraging technology firms for intelligence and influence operations, prompting the U.S. to view TikTok's operations as a significant security risk.

PAFACA Passes

TikTok has been under heightened scrutiny after ByteDance acquired Musical.ly and relaunched it as TikTok in the U.S. This acquisition prompted investigations by the Committee on Foreign Investment in the United States (CFIUS) due to potential national security risks. The U.S. government, under both the Trump and Biden administrations, expressed concerns about the data collection practices of TikTok and the possibility of content manipulation by the Chinese government. These concerns led to executive orders and legislative proposals aimed at mitigating these risks.

This eventually resulted in the Protecting Americans from Foreign Adversary Controlled Applications (PAFACA) Act, signed into law last April following a series of classified briefings and hearings by Congress. The act was designed to sever foreign adversary control over applications like TikTok through divestiture, reflecting a broader effort to protect U.S. national security from potential data collection and content manipulation by foreign adversaries.  

PAFACA identifies certain countries, including the People's Republic of China, as foreign adversaries and prohibits the distribution or maintenance of apps operated by entities controlled by foreign adversaries, such as ByteDance and TikTok, or any covered company determined by the President to pose a significant national security threat. It makes it unlawful for any entity to distribute, maintain, or update such applications in the U.S., specifically targeting services that enable these applications to function within the country.

If ByteDance fails to comply, TikTok could be effectively shut down in the U.S., impacting its 170 million American users. So in May, TikTok paid its top lawyers to argue that the new law infringes on Americans' First Amendment rights, claiming that the forced divestiture is not feasible within the stipulated timeline. They claimed that the company has invested heavily in safeguarding U.S. user data and has proposed a National Security Agreement to address these concerns. TikTok also contended that targeting it exclusively, while ignoring other social media platforms, is unfair. The case took the matter straight to the United States Court of Appeals for the District of Columbia Circuit, which has original and exclusive jurisdiction.

Court Lets Law Live

On Friday, December 6, the court ruled to uphold the constitutionality of the PAFACA. The court rejected the constitutional challenges brought by TikTok, affirming that the Act's provisions targeting TikTok and its related entities do not violate the First Amendment, the Fifth Amendment's guarantee of equal protection, the Bill of Attainder Clause, or the Takings Clause.

The court determined that the act serves compelling national security interests by addressing the risks of data collection and covert content manipulation by designated foreign adversaries like China. It concluded that the act is narrowly tailored to achieve these interests through divestiture requirements, thus withstanding strict scrutiny. The court also denied the petitioners' requests for a temporary injunction and the appointment of a special master, deciding the case based solely on the public record without relying on classified materials.

Chief Judge Srinivasan wrote a concurrence arguing that PAFACA should be subject to intermediate scrutiny rather than strict scrutiny. This is because the Act's divestment mandate targets foreign control by a designated adversary, addressing concerns outside the core of the First Amendment, such as data protection and covert content manipulation, without targeting specific content or viewpoints. But of course, if a law survives strict scrutiny, it’s going to withstand intermediate.

Supreme Court Agrees to Hear Oral Arguments on Jan. 10

For now, the law stands. Congress has the authority to ban TikTok to protect national security. In a somewhat surprising move, however, the Supreme Court has agreed to hear oral arguments on January 10, an extremely expedited schedule that gives little time for the parties to craft briefs. ByteDance had requested an emergency stay from SCOTUS to delay the ban's implementation, set for January 19. Instead of issuing or rejecting a stay, however, the justices agreed to hear oral arguments.

Meanwhile, the platform’s users and content creators are concerned about the potential impact on their platforms and income, with some considering shifting to other social media platforms.

Related Resources:

• Is Your TikTok Video Violating Copyright Laws? (FindLaw's Law and Daily Life)
• Is the Clock Ticking for TikTok? (FindLaw's Law and Daily Life)
• TikTok Tries to Stop the Clock on Divestment (FindLaw's Courtside)