TikTok, the popular social video app, sued the US government on Tuesday, saying the country’s new law that could ban the app violates the right to freedom of expression.
President Biden signed a law last month that would effectively ban the service in the US if its Chinese owner, ByteDance, does not sell TikTok’s US operations. Lawmakers supporting the law said a ban or sale was necessary to address national security concerns posed by the app’s ties to China.
Read more: LA influencers, companies live or die by TikTok’s algorithm. Now they fear for the future
“There is no doubt about it: the law will force a shutdown of TikTok by January 19, 2025, silencing the 170 million Americans who use the platform to communicate in ways that cannot be replicated elsewhere,” TikTok said and ByteDance in their filing, citing the new law.
The Justice Department declined to comment.
TikTok and ByteDance said in the lawsuit that they had been trying to work with the U.S. government’s Committee on Foreign Investment since 2019 to address security concerns. Under the terms of a deal laid out in a 90-page draft agreement, data collected on Tik Tok users in the US would be processed by Oracle, the US tech giant. The proposed agreement also called for Oracle to inspect TikTok’s programming code for vulnerabilities and to subject the platform’s content to independent oversight, according to the filing with the U.S. Court of Appeals for the D.C. Circuit.
If TikTok didn’t comply, the draft agreement called for financial sanctions on the company and also included the option to suspend TikTok’s U.S. operations, the companies said.
“The terms of that negotiated package are far less restrictive than an outright ban,” ByteDance and TikTok said in their filing.
But TikTok and ByteDance said it is unclear why the commission ultimately concluded the proposed agreement was insufficient and in March 2023 they “insisted that ByteDance would be required to divest the U.S. TikTok business,” according to the submission.
Read more: Questions swirl about the future of TikTok. Who could own it? How will the platform function?
TikTok and ByteDance also noted that the new law “does not support the idea” that Chinese ownership of TikTok poses national security risks.
“The speculative risk of harm is simply not enough when First Amendment values are at stake,” the companies said in their filing.
TikTok continues to move forward in addressing some security concerns by working with Oracle “in migrating the US platform and protecting US user data to Oracle’s cloud environment,” TikTok and ByteDance said in the filing.
As part of their lawsuit, TikTok and ByteDance are seeking an injunction banning the government from enforcing the new law.
“These will be difficult issues to resolve,” said Carl Tobias, a law professor at the University of Richmond.
Tobias said one of the challenges for TikTok and ByteDance is the government’s national security argument. “Federal courts tend to be quite deferential to these types of claims, especially from Congress,” Tobias said.
Other legal experts said they believe TikTok has a strong case. Douglas Mirell, a partner at Greenberg Glusker, said he suspects the government will bear a significant burden in trying to prove the law is not unconstitutional under the First Amendment.
“If I had to choose which side of the issue I would be on, I would be on the side of TikTok,” said Mirell, who focuses on First Amendment issues.
TikTok is a hugely popular app, with more than 1 billion users worldwide, and is an important part of the creator ecosystem. Small businesses rely on TikTok to promote their products, and creators have moved to LA to be closer to the Culver City office. The company employs about 500 people in Culver City, according to city records.
Read more: Universal Music Group artists are back dancing on TikTok after the licensing dispute is resolved
In its filing, ByteDance argued that it would not be feasible to separate TikTok’s U.S. operations from the rest of the company, in part because of the borderless nature of the social video app that allows international content to be mixed with U.S. videos.
“Such a limited amount of content would, in turn, dramatically undermine the value and viability of TikTok’s U.S. business,” the filing said.
TikTok’s massive popularity – and value – is due in large part to the algorithm its developers designed, which seamlessly delivers content to users based on what they’ve previously viewed. TikTok and ByteDance said in their filing: “The Chinese government has made it clear that it would not allow a divestiture of the recommendation engine that is a key to TikTok’s success in the United States.”
Still, analysts have predicted that some corporations and private equity firms would be interested in buying TikTok even if the coveted algorithm wasn’t part of the deal. Potential buyers could include Oracle and Microsoft, Daniel Ives, managing director at Wedbush Securities, said in an interview with the Times last month.
Sign up for our Wide Shot newsletter to receive the latest entertainment news, analysis and insights.
This story originally appeared in the Los Angeles Times.
