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TikTok, ByteDance, US creators argue against divest-or-ban law in US appeals court while government says national security at stake
TikTok told a US court on Monday that an “unprecedented” law forcing it to divest its US operations from parent company ByteDance or be banned would have “staggering” outcomes for free speech in the country.
The company, along with representatives of parent firm ByteDance and US content creators, appeared in court for the first time in their May challenge to the law passed in April.
US lawmakers have cited national security concerns around Chinese control of the popular app, which has 170 million users in the country.
Data on US users could be passed to Chinese authorities, or the Chinese government could access TikTok’s recommendation systems to influence what Americans see on the app, lawmakers have argued.
‘Extraordinary’
TikTok and ByteDance have said Beijing does not have access to US data and does not control the app’s feeds.
A panel of three judges heard the companies’ arguments at a Washington DC appeals court on Monday.
TikTok and ByteDance lawyer Andrew Pincus told the court the companies were not accused of any crime and were being penalised for possible future issues.
“This law imposes extraordinary speech prohibition based on indeterminate future risks,” he told the court.
He argued TikTok is “not owned” by China and cited the company’s ownership by a Cayman Islands holding company, but Judge Sri Srinivasan responded that the firm was “subject to Chinese control”.
Pincus reiterated TikTok’s argument that the law amounted to a ban on the app because divestment would be “unfeasible”.
But Judge Ginsberg responded the law is “an absolute bar on the current arrangement of control” of the company rather than the company itself.
First Amendment
Jeffrey Fisher, representing creators, argued posts on the platform were American speech that was “at most curated by a foreign company”.
Department of Justice lawyer Daniel Tenny disputed this, highlighting the foreign control of the platform and its recommendation engine.
“There’s really no dispute here that the recommendation engine is maintained, developed, and written by ByteDance rather than TikTok US,” he said.
“It is not expression by Americans in America – it is expression by Chinese engineers in China.”
The government argues the law is narrowly tailored enough to be compatible with First Amendment protections on free speech, while judges noted the government’s national security concerns.
The case is expected to go to the US Supreme Court ahead of the possible ban in January.
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