A federal appeals court in Washington upheld a law Friday that could result in social media giant TikTok’s eventual ban in the United States, pointing to the national security concerns of Congress.
The ruling from a unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit dismissed challenges from video-sharing app TikTok; its China-based parent company, ByteDance; and a group of its users, who argued the law would infringe on the free-speech rights of the platform and its users.
The law mandates the company’s U.S. subsidiary be sold or face a ban, and it is scheduled to go into effect Jan. 19 unless President Joe Biden grants a 90-day extension based on progress toward a qualified divestiture, the ruling states.
TikTok says it is “technologically, commercially, and legally infeasible” to divest the U.S. operations.
The D.C. Circuit ruled that the First Amendment “exists to protect free speech in the United States” and that the U.S. effort to get TikTok’s Beijing-based owner to divest the company is intended “solely to protect that freedom from a foreign adversary nation and to limit that adversary’s ability to gather data on people in the United States.”
The ruling means TikTok’s millions of users will need to find alternative media of communication, but the fault is that of the People’s Republic of China, or PRC, the court ruled.
“That burden is attributable to the PRC’s hybrid commercial threat to U.S. national security, not to the U.S. Government, which engaged with TikTok through a multi-year process in an effort to find an alternative solution,” the ruling states.
In a separate concurring opinion, Chief Judge Sri Srinivasan wrote that it was TikTok’s broad reach that caused Congress and multiple presidents to determine divesting it from the PRC’s control is essential for national security.
“Congress judged it necessary to assume that risk given the grave national-security threats it perceived,” Srinivasan wrote. “And because the record reflects that Congress’s decision was considered, consistent with longstanding regulatory practice, and devoid of an institutional aim to suppress particular messages or ideas, we are not in a position to set it aside.”
The Knight First Amendment Institute at Columbia University, Free Press and PEN America, which filed an amicus brief in the case in support of TikTok, said on Friday that the court’s ruling was based on a narrow reading of the First Amendment.
“This is a deeply misguided ruling that reads important First Amendment precedents too narrowly and gives the government sweeping power to restrict Americans’ access to information, ideas, and media from abroad,” Jameel Jaffer, the Knight First Amendment Institute’s executive director, said in a statement. “We hope that the appeals court’s ruling won’t be the last word.”
The Biden administration argued in the case that intrusion into the company’s ownership is justified because of the security risks of potential Chinese government use of the platform’s trove of data and access to Americans’ cellphones.
TikTok argued in court documents that “even if divestiture were feasible, TikTok in the United States would still be reduced to a shell of its former self, stripped of the innovative and expressive technology that tailors content to each user.”
TikTok said it had offered to give the U.S. government unprecedented control over its operations in the U.S., including a potential “shutdown” option to block the service in America, but the federal government walked away from the deal.
TikTok also criticized Congress for enacting the law with little on the record supporting the supposed dangers of the platform, saying lawmakers relied on a single committee report and a handful of lawmaker statements.
“This law is a radical departure from this country’s tradition of championing an open Internet, and sets a dangerous precedent allowing the political branches to target a disfavored speech platform and force it to sell or be shut down,” a company brief said.
But the measure was enacted after lawmakers received a series of closed-door briefings from the FBI and other intelligence agencies on threats posed by the app, and the details of those briefings were not made public.
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