TikTok Tries to Stop the Clock on Divestment

The owners of the popular Chinese-owned short video platform TikTok recently filed a lawsuit against the U.S. government to block a new law that would ban the app unless its parent company sells it to an American company before January 2025.

The law in question landed on President Joe Biden’s desk last month after sailing through Congress with broad bipartisan support, much to the dismay of TikTok and its 170 million American users, many of whom were enlisted by TikTok to unsuccessfully lobby Congress before the bill’s passage.

Its passage came after years of debate in Washington, thanks in part to alarming briefings by FBI Director Christopher Wray warning Congress and the American people about the threat posed by Chinese government-sponsored hackers and their escalating campaign against critical American infrastructure and other structurally important targets.

TikTok and its parent company, ByteDance, strongly objected to the law even before filing suit, calling it unconstitutional and an "extraordinary intrusion on free speech rights." The company argues it has invested billions of dollars to keep Americans’ data safe. The U.S. government and others have questioned such claims.

Is the Irony Lost?

The Chinese government has also criticized the law as "bullying" a foreign firm into following American law under the threat of being banned. The Chinese government did not specifically address the irony of that statement. Chinese foreign ministry spokesperson Wang Wenbin instead topped his government’s bon mot with one of his own: "If so-called national security reasons can be used to willfully suppress other countries’ superior companies, there would be no fairness to speak of."

If you’re curious about the top three most ironic things ever said, you can find it by searching on Google, Bing, or Wikipedia, finding posts on Twitter (X), Facebook, Instagram, YouTube, Reddit, WhatsApp, or LinkedIn, asking ChatGPT, or looking through almost any English-language news publication, all of which are banned in China for "not following Chinese law" and "threatening national security." As if that weren’t ironic enough, TikTok itself has been banned in China since 2020. That’s right, the Chinese government is complaining about America possibly banning one Chinese app after blocking and banning access to a laundry list of apps and websites, including the one America wants to block.

Perhaps understandably, Congress and the Biden administration has been largely unmoved by these protests, apart from taking issue with the way TikTok, ByteDance, the Chinese government, and many of TikTok’s users have characterized the law as an outright ban. Per White House press secretary Karine Jean-Pierre, the law is "…not a ban. It is a divestment," which would only result in a ban if ByteDance refused to find a buyer for its American assets before January 2025.  

The Complaint

TikTok and ByteDance filed their complaint in early May. The complaint’s main claim is that banning TikTok would amount to an unconstitutional infringement on Americans’ First Amendment rights.

The complaint challenges the premise of the law. According to TikTok, the divestiture demanded by the law is "simply not possible: not commercially, not technologically, not legally. And certainly not on the 270-day timeline required by the Act." Essentially, ByteDance argues it is a ban in all but name. The U.S. is likely to argue that there are numerous potential buyers who have expressed interest in acquiring TikTok and refer to the ability of President Biden to extend the timeline to accommodate the time required to negotiate the sale.  

The complaint goes on to say that the law, if upheld, would allow Congress to 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. The U.S. will point out that the law limits this power to foreign entities based in hostile nations. Also at issue is the fact that nonresident noncitizens within America’s jurisdiction do not have an inherent First Amendment right except by treaty, which China does not have.

TikTok further argues that:

• Congress has not released any firm evidence showing that TikTok is a threat to national security.
• TikTok has spent over $2 billion to build a system of technological and governance protections to help safeguard U.S. user data.
• TikTok already drafted a 90-page National Security Agreement allowing the U.S. government to suspend TikTok in the United States under certain circumstances.
• It isn’t fair that the government only targeted TikTok, and not any other social media platform.

Tick Tock TikTok

Whether TikTok’s arguments are viable, the reality is that the government took an extraordinary step in legislating their divestment from their Chinese parent company. Doing so angered TikTok, ByteDance, 170 million TikTok users, and free speech advocacy groups. The ire may only grow as January 2025 gets closer – especially since the government refuses to release any actual proof of the threat TikTok poses to the country. For now, TikTok’s fate is very much up in the air, and we’re just going to have to wait and see what happens.  

Thanks for coming to my TikTalk. 

Related Resources:

• Is the Clock Ticking for TikTok? (FindLaw’s Law and Daily Life)
• Can Congress Ban TikTok? (FindLaw’s Courtside)
• Can My Cellphone Data Be Used Against Me? (FindLaw’s Law and Daily Life)