TikTok filed a lawsuit to prevent the possible banning of the app in the US.

TikTok filed a lawsuit Tuesday to block a U.S. law that could lead to a nationwide ban on the popular app. The court move comes after the company issued legal threats after U.S. President Joe Biden signed the legislation last month.

The court challenge represents the beginning of a historic legal battle, which will determine whether U.S. security concerns about TikTok's ties to China can trump the First Amendment rights of TikTok's 170 million U.S. users.

The stakes of the case are critical for TikTok. If it loses, TikTok could be banned from U.S. app stores unless its Chinese parent company, ByteDance, sells the app to a non-Chinese entity by mid-January 2025.

In their petition filed Tuesday with the U.S. Court of Appeals for the District of Columbia Circuit, TikTok and Bytedance argue that the law is unconstitutional because it stifles Americans' speech and prevents them from accessing lawful information.

The petition claims that the U.S. government “took the unprecedented step of expressly singling out and banning” short-form video enforcement in an “unconstitutional exercise” of congressional power.

“For the first time in history,” the petition says, “Congress enacted a law that subjects a single specific platform of expression to a permanent nationwide ban and prohibits all Americans from participating in an online community with more than 1 billion people worldwide.”

The White House referred questions about TikTok's legal challenge to the Justice Department, which did not respond to a request for comment.

The lawsuit comes after years of U.S. accusations that TikTok's ties to China could potentially expose Americans' personal information to the Chinese government.

Debate over data sharing

TikTok has strongly denied giving Chinese government officials access to U.S. user data and says it took steps to protect that information by hosting the data on servers owned by U.S. tech giant Oracle.

Those measures are part of a 90-page draft agreement before a government panel known as the U.S. Foreign Investment Commission, a multi-agency body that has been reviewing TikTok's U.S. operations since 2019, according to the petition. That same draft agreement also includes the ability of the U.S. government to shut down TikTok if the app or ByteDance “violate certain obligations under the agreement,” the petition said.

But those assurances did not alleviate U.S. officials' concerns, which include fears that China could use TikTok data to identify intelligence targets, spread propaganda or engage in other forms of covert influence.

The U.S. government has not publicly presented any concrete evidence demonstrating Chinese government access to TikTok data to date. U.S. lawmakers received classified briefings from national security officials behind closed doors, but did not declassify any material from those meetings.

Reactions to the briefings were mixed, with one House Republican saying there was “no specific information (...) that was well-founded evidence” and a House Democrat saying the issue boils down to a decision on how to curb China's “malign influence.”

But Virginia Democratic Senator Mark Warner, a supporter of the TikTok legislation, said in testimony on the Senate floor in April that the briefings provided critical information about the risk posed by TikTok.

“Many Americans, particularly young people, are rightly skeptical” of legislation cracking down on TikTok, Warner said in his remarks. “At the end of the day, they didn't see what Congress saw. They weren't at the classified briefings that Congress did, which delved into some of the threats posed by foreign control of TikTok.”

In March, those fears culminated in legislation that gave TikTok about six months to sell or face a U.S. ban. Passed by the House, it stalled in the Senate before an updated version of the bill was fast-tracked and attached to a major foreign aid package benefiting Israel and Ukraine.

U.S. lawmakers described the bill in question as a forced divestment from TikTok, not an outright ban on the app. TikTok has insisted, however, that a ban would be the only likely outcome if the law is upheld.

“The ‘qualifying divestiture’ required by the Act to allow TikTok to continue operating in the United States is simply not possible,” Tuesday's petition said, “either commercially, technologically, or legally.”

First Amendment Implications

TikTok and ByteDance called the national security fears, which are the focus of the TikTok legislation, “speculative and analytically flawed,” and added in the petition that the bill's quick passage reflects how its authors in Congress relied on “speculation, not ‘evidence,’ as the First Amendment requires,” to argue their case.

First Amendment experts say TikTok's claims have some merit. The Supreme Court held, for example, that the U.S. government cannot prohibit Americans from receiving foreign propaganda if they so choose. To underscore this point, legislation known as the Berman amendment also prohibits U.S. presidents from blocking the free flow of media from foreign countries, even those deemed hostile to the United States.

“National security claims should not trump the First Amendment,” said Evelyn Douek, an assistant law professor at Stanford University who studies regulations of online platforms. “Otherwise, the Constitution would have no real value. At the very least, the government should be forced to provide evidence for its claims. That said, there is precedent for the (Supreme) Court to neglect these principles, especially in the context of counterterrorism and foreign speech.”

TikTok scored some early court victories last year as several U.S. states attempted to crack down on the app, foreshadowing the coming battle over online speech. In Montana, the only state to pass its own TikTok ban affecting personal devices, a federal judge temporarily blocked the legislation, claiming the state law unconstitutionally “harmed (users') First Amendment rights and cut off a revenue stream that many depend on.”

The bipartisan nature of the law Biden signed could convince the courts of the seriousness of the national security concerns surrounding TikTok, said Gautam Hans, associate director of Cornell University's First Amendment Clinic. Still, Hans said, “without a public debate about exactly what the risks are (...) it's hard to determine why the courts should validate an unprecedented law.”

In addition to potentially infringing on the speech rights of TikTok's U.S. users, the federal law TikTok is challenging also implicates the constitutional rights of Apple and Google, whose app stores would be prohibited from carrying TikTok if the ban were to go into effect.

“This raises concerns about potentially unconstitutional government intrusion into these platforms' decisions regarding what content to have,” Jennifer Huddleston, a research fellow at the libertarian Cato Institute, wrote in an op-ed last month. “Moreover, it could set a dangerous precedent for government intervention in the online space that many would condemn in the offline space.”

However, the U.S. government and more than half of the states have restricted TikTok on government devices, reflecting the authority governments have to manage their own property. Internationally, TikTok was banned on government devices in Canada, the UK and the European Commission. The app has been subject to a total ban in India since 2020.

Some U.S. officials have been trying to ban TikTok in the United States since 2020, when former President Donald Trump took steps to block the app by executive order. (Trump has since reversed his position, and said a ban on TikTok would only help Meta, a company Trump blames for his 2020 election defeat.)

The outcome of the TikTok case is likely to have big implications for how the U.S. government regulates technology and other foreign speech, Douek said.

“It's really important to think about this not just in terms of TikTok, but in terms of all foreign platforms going forward,” Douek said. “In a globalized world, this issue will come up again and again. And if the government is given the power to simply ban a platform based on what at this point seem like mere concerns about potential future harm, rather than real, clear and present dangers, that would be extremely concerning.”