Will TikTok Be Banned in January? That Question Is Headed to Court.

Tech

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By The New York Times

Published 3 weeks ago on

September 16, 2024

A TikTok billboard in Helena, Mont., on Aug. 14, 2023. TikTok will be in federal court on Monday, aiming to block a new law that will ban the popular video app in the United States early next year. (Tailyr Irvine/The New York Times)

TikTok fights U.S. law that could ban it, citing free speech violations and impractical sale requirements.
The government claims TikTok's Chinese ownership poses national security risks, but crucial arguments are sealed from public view.
Supreme Court involvement is likely given the case's significance, with a ruling expected by December before a potential ban.

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TikTok could be banned in the United States in mere months. Its lawyers head to court Monday to fight that outcome, the latest stage in an ongoing clash between the short-form video app and the U.S. government.

For years, TikTok and its Chinese parent company, ByteDance, have been under scrutiny from U.S. lawmakers and intelligence officials for the app’s ties to China. They have argued in congressional hearings and in court filings that the app poses national security concerns because the Chinese government could use it to access sensitive information about Americans or to spread propaganda. They pushed a law, signed in April, that requires ByteDance to either sell the app to a non-Chinese owner or face a ban.

ByteDance and TikTok sued to block the law in May, and have said a ban would violate Americans’ free speech rights. They argue there are other less restrictive ways to address those security concerns.

Federal judges will hear arguments from the two sides Monday, in a hearing that could give a sense of which way the judges are leaning.

The ruling is unlikely to be the final word on TikTok’s future, or that of its 170 million U.S. users. Lawyers in the case have asked the judges to make a decision before early December. Legal experts expect the Supreme Court to make a decision on whether to hear the case before a ban takes effect in mid-January.

What Will Happen in Court on Monday?

Oral arguments will be held in the U.S. Court of Appeals for the District of Columbia Circuit, where TikTok, ByteDance and a group of TikTok users sued to overturn the law.

The law specified that any challenges must be heard by this court, in part because its judges are familiar with national security arguments.

TikTok and ByteDance, a group of TikTok users and the government will present their arguments. Then a panel of three judges overseeing the case is expected to ask questions. Some legal experts anticipate that they will make a decision as soon as November.

The Supreme Court would decide whether to take up an appeal in the case from either party. Many legal experts are convinced that the Supreme Court will hear the case given its high stakes and the court’s interest in internet-related First Amendment cases in recent years.

Why Is TikTok Trying to Block the New Law?

TikTok argues that banning the app would violate Americans’ First Amendment rights to free speech. It contends that the First Amendment protects the right of Americans to speak and convene on the app and that the government can’t stop users from expressing ideas through the editor and publisher of their choice. It has also said that changes to TikTok’s ownership could affect its content policies and shape what users are able to share on the platform.

TikTok and ByteDance have also said a sale isn’t legally, commercially or technically feasible by the Jan. 19, 2025, deadline posed by the law, especially since the Chinese government has said it’s unwilling to allow the export of the technology that fuels TikTok’s uncanny video recommendations. They also argue that the government’s national security concerns are “speculative” and do not rise to the level that would justify violating users’ rights to free speech.

The government has said that it is not violating the First Amendment because it is targeting TikTok’s control by a foreign adversary rather than protected speech on the app, and that users can turn to other social platforms.

TikTok also argues that Congress did not properly consider its efforts to address the government’s security concerns before passing the law. ByteDance and TikTok, which are privately held, have said that they worked hard on a multibillion-dollar security plan with Oracle, the U.S. software giant, that aimed to handle sensitive U.S. user data separately from the rest of the company’s operations. The plan also offered unique oversight to the U.S. government and Oracle, TikTok said.

The government said in a filing that TikTok’s plan “still permitted certain data of U.S. users to flow to China” and allowed ByteDance executives overseas to direct TikTok’s U.S. operations.

How Will the U.S. Defend the Law?

The Justice Department has argued that the law doesn’t amount to a ban because it gives ByteDance the option to sell TikTok to a government-approved buyer.

The government says its concerns are about TikTok’s ownership, not the app itself. In general, it is worried that the app’s Chinese ownership gives Beijing too much access to U.S. users’ sensitive data, or to control the messages shared on the platform.

But the government’s strongest arguments are under seal. Congress passed the law after listening to classified briefings on the threats posed by TikTok’s Chinese ownership from members of the FBI and Office of the Director of National Intelligence.

And now, in the court proceedings, a substantial portion of the Justice Department’s filings are redacted, which means the public can’t see them, though they are visible to the judges.

Some of what is public in the government’s case is vague. Casey Blackburn, an assistant director of national intelligence, said in a filing that TikTok and its parent company have “taken action in response” to Chinese “demands to censor content outside of China” — namely, TikTok and ByteDance had already made decisions about material on the app at China’s direction.

A Justice Department official said in another filing that an internal ByteDance tool let the company’s employees in the United States and China collect information on its users, “including views on gun control, abortion and religion.”

Hasn’t the U.S. Tried to Regulate TikTok Before?

Yes. The architects of this law tried to inoculate it from issues that felled previous legislation against TikTok.

Montana passed a law last year that would have banned TikTok from operating in the state on Jan. 1, 2024, citing security concerns. A federal judge blocked it, saying it most likely violated the First Amendment and a clause in the U.S. Constitution that gives Congress the power to regulate commerce with foreign nations.

Former President Donald Trump also tried to ban or force the sale of TikTok in 2020 with an executive order citing national security concerns. Federal courts blocked the Commerce Department from carrying out his plan in part on First Amendment grounds, while another judge said the government most likely overstepped its legal authority and “acted in an arbitrary and capricious manner by failing to consider obvious alternatives.”

How Likely Is It That TikTok Will Disappear?

It’s possible. India banned TikTok in 2020, eliminating the app’s biggest market at the time.

But predictions from experts about whether this will happen in the United States are all over the place.

Alan Rozenshtein, an associate professor at the University of Minnesota Law School, said it was “slightly more likely than not” that TikTok would face a ban next spring, while Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University, which filed a brief in the case supporting TikTok and ByteDance, said the court would strike down the law because it was “constitutionally unjustifiable.”

Avoiding a ban would require an outside buyer, but while some interest has been floated from people such as billionaire Frank McCourt, TikTok and ByteDance have not commented on such overtures and have said publicly that their focus is on overturning the law.

How Long Is the Case Expected to Last?

Lawyers for TikTok and the Justice Department have asked the judges to issue their ruling by Dec. 6, based on the Jan. 19 deadline the law lays out for TikTok, and on the interest each party has in appealing a decision to the Supreme Court.

It’s not clear whether the Supreme Court will take up the case, or when it might do so.

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This article originally appeared in The New York Times.

By Sapna Maheshwari/Tailyr Irvine
c. 2024 The New York Times Company