HomePoliticsTikTok denounces American 'political demagoguery' in fight against possible ban

TikTok denounces American ‘political demagoguery’ in fight against possible ban

The Biden administration’s new law forcing the sale or ban of TikTok is the unconstitutional result of “political demagoguery” and must be overturned, TikTok lawyers said in a court filing Thursday, marking the start of one of the most consequential legal battles in American internet history.

The briefs, filed by TikTok and a group of eight creators, largely repeat previous arguments that a law requiring China-based TikTok owner ByteDance to sell its U.S. operations by Jan. 19 or face a nationwide ban would violate with Americans’ First Amendment right to free expression.

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“Never before has Congress silenced so many speeches in one act,” TikTok’s letter said. The law “sets a dangerous precedent that allows political branches to target an unfavorable speech platform and force it to be sold or shut down.”

But TikTok also went on the offensive, sharing for the first time internal documents from years of failed negotiations with the federal government, which it says show the government was not operating in good faith.

The company attached a roughly 100-page draft agreement it presented to the government in August 2022 in hopes of addressing its concerns — a proposal that would have given federal officials extraordinary power to shape TikTok’s U.S. operation and make it to monitor, including a national kill switch. the government could deploy if they believe the app remains a threat.

The Biden administration declined the offer, arguing it was insufficient to address their concerns but without saying why. In First Amendment cases, judges have traditionally called on the government to pursue its objectives with the “least restrictive” impact on American speech.

The high-profile brawl in Washington could have a dramatic impact on the future of online speeches. Enforcing the law could decimate an online news and entertainment cornerstone used by 170 million people across the country. But undoing it would rebuke a largely bipartisan act by Congress and undermine some of the few substantive tech legislation in decades.

The administration has said the law is crucial to protect national security, citing concerns that the Chinese government could boost propaganda through the popular app’s video recommendations or spy on Americans’ personal lives – neither has been shown to have occurred. The Justice Department, which declined to comment to The Washington Post, is expected to officially respond to TikTok’s letter next month.

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But TikTok argued in its letter that the law would turn the US app into an “island” where US users would be shielded from videos shot outside their borders and have an “experience separate from the rest of the global internet.” — an echo of the fragmented and oppressive Chinese internet laws that U.S. lawmakers have long criticized.

A group of TikTok creators also filed a legal challenge last month, with funding from TikTok; matters have now been consolidated. In a legal brief Thursday, its creators — a cookie baker in Memphis, a skin-care entrepreneur in Atlanta, a football coach in North Dakota — said the law would be a “devastating blow” to their online communities and livelihoods.

Topher Townsend, an Air Force veteran and conservative rapper in Mississippi, said the law “betrays the values ​​I tried to protect.” Brian Firebaugh, a Texas rancher who posts under @cattleguy, added: “If you ban TikTok, you’re banning my way of life.”

TikTok’s proposal followed years of negotiations with the Committee on Foreign Investment in the United States, a multi-agency federal group known as CFIUS that reviews business deals for national security risks. The company says the group abruptly ended talks without clear explanation. (A government official said last month that the company was told a forced sale was the only way forward.)

TikTok also gave the court a last-ditch letter that ByteDance lawyers sent to a Justice Department official in April pleading for talks to resume. In the 13-page letter, the lawyers said the government had provided only “vague and inept responses” to the company’s concerns and seemed wedded to a position that was “detached from reality.”

Although the company had remained silent to protect the negotiations’ confidentiality agreements, the lawyers argued, they were repeatedly undermined by “problematic and damaging” comments from government officials and leaks to the media.

“The company has approached this process in a responsible and constructive manner in light of … an extraordinary public campaign against it, increasingly led by the U.S. government officials” involved in the negotiations, the lawyers wrote. “We fear … that CFIUS has been compromised by political demagoguery.”

In its letter, TikTok attacked the administration’s reliance on “speculative” concerns and Congress’s “collection of ‘cans,’ ‘coulds,’ ‘powers’ and ‘potentials’” in the deliberations leading up to the passage of the law preceded.

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“Congress took a sledgehammer without even considering whether a scalpel would be enough,” he said.

The law, the letter added, suffered from a “fatal” constitutional flaw: It mentioned TikTok by name while giving other “foreign, adversary-controlled applications” a process to review, that TikTok had a “unique, two-tiered system of speech regulation’. .”

“Congress itself has established a generally applicable standard and process” and has “merely denied protections to TikTok… without any reason it has deemed necessary to share,” the letter said. “That is a strong indication that punishment is taking place [TikTok] was the point.”

In its letter, TikTok states that a sale within the one-year deadline would be financially and technically impossible and would in fact guarantee a ban. Previous attempts at bans by the Trump administration and the state of Montana were thrown out of court because the government went too far.

The TikTok app runs on approximately 2 billion lines of code written and maintained by more than 4,000 software engineers, the company said; a new buyer would have to start largely from scratch. And any sales would likely be blocked by the Chinese government, which added recommendation algorithms — the backbone of TikTok — to its export control list after Trump’s failed 2020 ban.

Separating TikTok’s U.S. app from the ByteDance engineers in China who built it and the global sales, marketing and creator relations teams that maintain it would dismantle its business into a “shell of its former self,” the letter argued. It would also put the company at an unfair disadvantage compared to US-based companies, such as Meta and Microsoft, that employ technical staff in China.

In a statement filed alongside the brief, TikTok’s head of operations, Adam Presser, sought to drive home the value of the U.S. connection to the rest of the world. American users posted more than five billion videos last year, he said, and half of the thirteen trillion views they received came from overseas viewers. A quarter of the videos Americans watched also came from outside the country.

Doubts about TikTok’s survival in the US had already damaged the company, Presser said, adding that “competitors have aggressively tried to recruit our talent” since the law was passed.

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The instructions kick off an expedited schedule ordered last month by a panel of judges on the U.S. Court of Appeals for the D.C. Circuit. Both TikTok and the Justice Department have asked the court to rule by December 6, to allow for a possible review by the Supreme Court before the law takes effect. Oral arguments will begin on September 16 – just four months before the January 19 divestment deadline.

Because the sale-or-ban law established the court of appeals as the “exclusive jurisdiction” for any challenge, the order gives TikTok one of the few opportunities to defend itself in court. Unlike district court, where a fact-finding process involves presenting evidence and calling witnesses, appellate judges review legal briefs and weigh in on constitutional arguments, and the only way to overturn their ruling is through the Supreme Court .

In addition to the brief, TikTok submitted hundreds of pages of supporting documents, including depositions from experts retained by TikTok arguing on the company’s behalf.

Christopher Simkins, a former CFIUS negotiator and DOJ investigator, said TikTok’s proposal was “the most sophisticated and thorough mitigation agreement” he had seen in decades of reviewing similar contracts.

Randal Milch, a law professor at New York University, outlined the complexities of past deals with tech companies to argue that the law was effectively a ban because a forced sale option on the government’s timeline was “completely illusory.”

And Steven Weber, a professor at the University of California at Berkeley, said the government’s concerns about propaganda, disinformation and data security were “industry-wide issues that are not unique to TikTok.”

The data TikTok collects is “not meaningfully different” from what is collected by Google, Facebook and Snapchat, he said, and many U.S. tech companies have China-based subsidiaries that “therefore face the same theoretical risk.”

“There is no clear national security rationale for the law’s specific focus on TikTok,” he wrote. “It is arbitrary to single out one market participant for policy issues facing an entire sector.”

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