Here’s how the TikTok ban will likely play out in the courts
On Wednesday, President Joe Biden signed a bill into law that could effectively ban TikTok in the U.S. — but it’s not going to be that easy.
The bill requires ByteDance, TikTok’s parent company, to sell its shares in the app to a buyer that meets U.S. government requirements within 270 days. Failure to do so would result in cloud providers and app stores being banned from distributing the app. (Existing users might be able to retain the app on their phones, but access to its content could be restricted, akin to a show available in one country but not another on Netflix.) The deadline for compliance is Jan. 19, one day before Biden’s term is set to expire. The legislation was connected to a foreign aid package that included support for Israel, Ukraine, and Taiwan.
If implemented, the ban would affect the approximately 170 million monthly active TikTok users in the U.S., 42 percent of whom are between the ages of 18 and 24. The app is particularly popular among younger users who use it to organize, communicate, educate, and entertain.
Lawmakers who voted in support of the divest or ban legislation cited concerns about data privacy, national security, surveillance, and propaganda, primarily due to ByteDance’s Chinese ownership. TikTok has routinely denied allegations that it shares U.S. users’ data with the Chinese government.
“We don’t want to see a ban,” White House spokeswoman Karine Jean-Pierre said on Tuesday, according to Reuters. President Joe Biden’s campaign, however, will still be using it to reach young voters. “This is about PRC ownership,” she emphasized, referring to the People’s Republic of China.
TikTok does see it as a ban, though.
“Make no mistake, this is a ban — a ban on TikTok, and a ban on you, and your voice,” CEO Shou Zi Chew said, in a video posted on TikTok.
The American public’s stance on the ban is divided. About half of American adults — 49 percent, according to YouGov data from last month — said they’d support a ban. Approximately a third of Americans believe TikTok poses a national security threat while another third disagreed. At least half of all TikTok users say they strongly or somewhat oppose a ban. This debate comes at a critical time when many lawmakers are facing reelection.
So, what happens now? “It almost seems certain that we’ll see legal challenges, and there do seem to be precedents that raise significant First Amendment concerns about this approach,” explained Jennifer Huddleston, a senior fellow in technology policy at the Cato Institute, to Mashable.
What might TikTok do?
TikTok is likely gearing up for a legal battle to challenge any divestment or outright ban. That means suing the government, most likely on constitutional grounds, in federal court.
“This unconstitutional law is a TikTok ban, and we will challenge it in court,” TikTok stated after Biden signed the bill. “We believe the facts and the law are clearly on our side, and we will ultimately prevail. The fact is, we have invested billions of dollars to keep U.S. data safe and our platform free from outside influence and manipulation.”
TikTok’s constitutional argument will presumably focus on the First Amendment’s protection of freedom of speech and expression, arguing that banning the app or forcing divestment violates these rights. On this basis, TikTok would be seeking to have the law declared unconstitutional, or at least asking for an injunction blocking it from being enforced. The U.S. government’s position is expected to emphasize that any restriction on TikTok is necessary to safeguard Americans against surveillance, data privacy breaches, propaganda, and national security threats. Both sides have previously made similar arguments, with TikTok winning that argument in the courts before, notably in Montana last year.
“I expect there will be at least one legal challenge to the law. And I think the U.S. government will be hard-pressed to show that the law satisfies the appropriate First Amendment scrutiny,” Electronic Frontier Foundation Civil Liberties Director David Greene told Mashable, adding that “there is no First Amendment exception for national security.”
TikTok has strong legal allies and precedents supporting its case. “This legislation would set a terrible precedent for excessive U.S. government control over social media and Americans’ speech,” Ashley Gorski, senior staff attorney in the ACLU’s National Security Project, told Mashable. Jenna Ruddock, policy counsel for Free Press, stated that a law targeting one platform like this violates the First Amendment and limits “essential spaces for people to connect and communicate.”
TikTok might also argue due process violations, claiming the U.S. failed to explain why its mitigation measures were insufficient. Additionally, TikTok could cite the bill of attainder, alleging that the legislature specifically targets them unfairly.
Depending on how the lower court rules, and on TikTok’s desire to keep fighting, there’s a possibility that this case could be decided by the Supreme Court.
Beyond legal challenges, TikTok is expected to launch an aggressive PR campaign. When the ban was looming, TikTok urged its U.S. users to call lawmakers, resulting in a flood of calls to Congress. As Mashable’s Tim Marcin wrote, “You can expect more messaging from the company as it fights to stay in the U.S.”
But TikTok hasn’t filed yet — and the U.S. government will likely respond in kind.
How might the U.S. government respond?
“The government will argue that this law is addressing conduct, not speech, and therefore, outside First Amendment protections,” Anupam Chander, a Scott K. Ginsburg professor of law and technology and a visiting scholar at the Institute for Rebooting Social Media at the Berkman Klein Center for Internet & Society at Harvard University, told Mashable. He noted two instances of conduct could be alleged: “The conduct at issue would be surveillance, and the other would be propaganda — that it is manipulating the American people on behalf of a foreign government.” However, the propaganda claim involves speech because it centers on “the editorial selection of particular topics, rather than others.”
The U.S. government could also claim that TikTok infringes on Americans’ data privacy and poses a national security risk.
Yet, the data-gathering argument also raises free speech concerns. “Even in the context of personal data, [that is], the surveillance prong of the government’s claims, there is an important First Amendment constraint,” Chander explained.
The court might argue that this infringes on the right to expression, but Chander expressed uncertainty over “whether or not [the courts] will feel that impingement is justified.”
“And that’s really where the big question mark in my mind is,” Chander said. “Will the court be persuaded that the government has demonstrated […] a compelling interest in preventing this app from operating with ownership that traces back to China?”
And the U.S. will likely have to supply more evidence to support its claims.
“We don’t have any public evidence of why TikTok is a national security threat,” Chander said. “We saw that members of the House and the Senate were given secret intelligence briefings by the U.S. government. Some of those senators and congressmen walked out and said, ‘Oh my God, this is a national security threat, and we should ban it.’ While others said it was all conjecture.”
That lack of transparency raises concerns about banning a platform without clear justification, especially one used by millions.
As journalist and commentator Casey Newton pointed out in Platformer, “The government will likely struggle to make a convincing argument that banning TikTok is necessary for protecting Americans.”
“If the Chinese government wants data on Americans, they don’t need TikTok to get it,” Alan Z. Rozenshtein, an associate professor of law at the University of Minnesota, wrote in a piece for Lawfare on Monday. “They don’t even need to steal it. The United States is a notorious outlier among developed nations for its lack of a national data privacy law. This means that the Chinese can just buy from data brokers and other third-party aggregators much of the same information that they would get from having access to TikTok user data.”
Is there precedent?
Two legal cases suggest that TikTok’s arguments may hold weight. One is Lamont v. Postmaster General, a Supreme Court case from the 1960s. This case addressed the propaganda argument, similar to what the U.S. government might make against TikTok. In Lamont v. the Postmaster General, the court ruled that blocking mail from communist China infringed upon recipients’ First Amendment rights to receive information.
The other case involves Montana’s failed attempt to ban TikTok. However, winning one case in court does not guarantee TikTok’s victory in this case. The government’s arguments will likely focus on the severity of national security risks, justifying any limitations on free expression.
What happens if TikTok wins in the courts?
TikTok could pursue several paths, but it would likely need to make operational changes to comply with U.S. government expectations, even if the law is deemed unconstitutional.
What happens if the U.S. wins in the courts?
If the U.S. government prevails, TikTok will be forced to sell its shares to a U.S.-approved buyer or withdraw from cloud providers and app stores.
“[TikTok] really has one shot, which is in the courts,” Chander said. “The alternate Hail Mary strategy is to withdraw from the U.S. market and hope to return when there is a thaw in China-U.S. relations.”
Even if the legislation is upheld, ByteDance has at least nine months to decide if it will sell the app in the U.S. The timeline can be extended to a year if the president feels there is progress on a deal.
Who is likely to win?
The outcome is uncertain, as both Democrats and Republicans support action against TikTok. Many legal experts, like Chander, aren’t making any assumptions on how this might turn out. “This is a question of what level of trust you place in the government to make national security determinations, even if those determinations impinge on your personal freedoms,” he said.
Regardless of the outcome, the debate over technology, especially tech predominantly used by young people, will continue. New technologies often spark moral panic due to three main factors. According to Andrew Przybylski, a professor of human behavior and technology at Oxford University, these include “a new popular thing that young people are doing, a reason to think that these young people are vulnerable, and then some secret ingredient about what makes this technology different than all of the other technologies that we panicked about before.”
Fears over TikTok’s algorithm and China’s involvement in the app may persist as issues for U.S. legislators even if TikTok wins.
“We’ve already seen things like preventing TikTok from being used on government-owned devices or government-owned networks [and] ideas like Project Texas, that create some sort of data localization in the U.S.,” Huddleston said. “You could also see some form of disclosure requirements.”
How long will this take?
The short answer is that we don’t know. A quick resolution could bring an answer in a few months, but for now, TikTok is acting like it’s here to stay.
