TikTok and its parent company on Tuesday filed a legal challenge against the United States over a law that President Biden signed last month outlawing the app nationwide unless it finds a buyer within a year.
In the petition filed in the Court of Appeals for the District of Columbia Circuit, the company said the legislation exceeds the bounds of the constitution and suppresses the speech of millions of Americans.
"Banning TikTok is so obviously unconstitutional, in fact, that even the Act's sponsors recognized that reality, and therefore have tried mightily to depict the law not as a ban at all, but merely a regulation of TikTok's ownership," according to the filing.
The law, passed through Congress at lightning speed, which caught many inside TikTok off guard, is intended to force TikTok to be sold to a non-Chinese company in nine months, with the possibility of a three month extension if a possible sale is in play.
Yet lawyers for TikTok say the law offers the company a false choice, since fully divesting from its parent company, ByteDance, is "simply not possible: not commercially, not technologically, not legally," the challenge states. "And certainly not on the 270-day timeline required by the Act."
Anupam Chander, a law professor at Georgetown University who specializes in technology regulations, said if TikTok loses this legal fight, it will likely shut down in the U.S.
"The problem for TikTok is that they have a parent company that has these obligation in China, but they're trying to live by free speech rules by the United States," Chander said in an interview. "The question is whether American courts will believe that that's even possible."
TikTok says law based on "speculative and analytically flawed concerns"
Lawmakers in Washington have long been suspicious of TikTok, fearing its Chinese owner could use the popular app to spy on Americans or spread dangerous disinformation.
But in the company's legal petition, lawyers for TikTok say invoking "national security" does not give the government a free pass to violate the First Amendment, especially, TikTok, argues, when no public evidence has been presented of the Chinese government using the app as a weapon against Americans.
According to the filing, the law is based on "speculative and analytically flawed concerns about data security and content manipulation — concerns that, even if grounded in fact, could be addressed through far less restrictive and more narrowly tailored means."
Constitutional scholars say there are few ways for the government to restrict speech in a way that would survive a legal challenge. One of those ways is if the government can demonstrate a national security risk. Also key, legal experts say, is the government showing the speech suppression was the least restrictive option on the table.
TikTok said Congress ignored less restrictive ways of addressing the government's national security concerns.
"If Congress can do this, it can circumvent the First Amendment by invoking national security and ordering the publisher of any individual newspaper or website to sell to avoid being shut down," the filing states. "And for TikTok, any such divestiture would disconnect Americans from the rest of the global community."
Since more than 90% of TikTok's users are outside of America, Georgetown's Chander said selling the U.S.-based app to a different owner would cannibalize its own business.
"You can't really create a TikTok U.S., while having a different company manage TikTok Canada," Chander said in an interview. "What you're doing essentially is creating a rival between two TikToks," he said. "It may be better to take your marbles out of the United States and hope to make money outside of the U.S., rather than sell it at a fire-sale price."
TikTok critics call app a 'spy balloon on your phone'
The filing sets off what could be the most important battle for TikTok. It has been fending off legal challenges to its existence since former President Trump first sought to ban the app through an executive order in the summer of 2020. That effort was blocked by federal courts.
Since then, Democrats and Republicans have shown a rare moment of unity around calls to pressure TikTok to sever its ties with ByteDance, the Beijing-based tech giant that owns the video-streaming app.
Congress has never before passed legislation that could outright ban a wildly popular social media app, a gesture the U.S. government has criticized authoritarian nations for doing.
In the case of TikTok, however, lawmakers have called the app a "spy balloon on your phone," emphasizing how the Chinese government could gain access to the personal data of U.S. citizens.
Worries also persist in Washington that Beijing could influence the views of Americans by dictating what videos are boosted on the platform. That concern has only become heightened seven months before a presidential election.
Yet the fears so far indeed remain hypothetical.
There is no publicly available example of the Chinese government attempting to use TikTok as an espionage or data collection tool. And no proof that the Chinese government has ever had a hand over what TikTok's 170 million American users see every day on the app.
TikTok says it offers U.S. a plan that would shut app down if it violated agreement
TikTok, for its part, says it has invested $2 billion on a plan, dubbed Project Texas, to separate its U.S. operation from its Chinese parent company. It deleted all of Americans' data from foreign servers and relocated all of the data to servers on U.S. soil overseen by the Austin-based tech company Oracle.
While the plan was intended to build trust with U.S. lawmakers and users, reports surfaced showing that data was still moving between staff in California and Beijing.
In the filing on Tuesday, TikTok said it submitted an agreement to the Committee on Foreign Investment in the United States, which has been probing the app for five years, that would allow the U.S. to suspend TikTok if it violated terms set forth in a national security plan.
But, lawyers for TikTok say, the deal was swept aside, "in favor of the politically expedient and punitive approach," the petition states.
Mnuchin claims he will place a bid to buy TikTok, even though app is not for sale
Despite the new law giving TikTok the ultimatum of selling or being shut down, there are many questions around how the app could even be bought by another company or group of investors.
Former Treasury Secretary Steven Mnuchin told NPR on Monday, he is planning to assemble a group of investors to try to purchase TikTok without the app's algorithm.
Mnuchin, who declined to answer additional questions, said in between sessions at the Milken Institute Global Conference in Los Angeles that the proposal to buy the app is still in the works, but he would not say when it would be formally submitted.
One major obstacle in any possible sale of TikTok is a glaring problem: The app is not for sale.
Despite the new law in the U.S., ByteDance says it does not intend to let go of the service. Furthermore, winning the support of China would be necessary, and officials in Beijing are adamantly against any forced sale.
In 2020, amid the Trump administration's clamp down on the app, China added "content-recommendation algorithms" to its export-control list, effectively adding new regulations over how TikTok's all-powerful algorithm could ever be sold.
ByteDance, not TikTok, developed and controls the algorithm that determines what millions see on the app every day. The technology has become the envy of Silicon Valley, and no U.S. tech company has been able dislodge TikTok's firm hold on the short-form video market. Experts say key to its success is its highly engaging and hyper-personalized video-ranking algorithm.
The algorithm, which involves millions of lines of software code developed by thousands of engineers over many years, cannot be easily transferred to the U.S., even if China did allow it, TikTok's challenge states.
Lawyers for TikTok argue that "any severance [of the algorithm] would leave TikTok without access to the recommendation engine that has created a unique style and community that cannot be replicated on any other platform today."
