TikTok Faces Toughest Challenge Yet With Lawsuit Against Divestment Bill or Ban

Facing its most significant threat yet to operate in the US, TikTok and its Chinese parent company ByteDance are trying to repeat their court success in blocking other attempts to ban the app, arguing that it violates the First Amendment.

The technology company filed a lawsuit this week challenging a recently signed bipartisan law that would force the company to divest TikTok or face a U.S. ban. Lawmakers supporting the measure said TikTok threatens U.S. national security because of Beijing’s tight control over Chinese technology companies.

TikTok argued in a complaint filed Tuesday against the Justice Department that the law violates the First Amendment — an argument that has proven successful in its challenges to block other attempts to restrict use of the app in the U.S. under the Trump administration. and in Montana.

But the new law, the Protecting Americans from Controlled Applications of Foreign Adversaries Act, focuses squarely on threats to national security and includes provisions other than naming TikTok that could make challenging the company more difficult.

Sarah Kreps, director of the Tech Policy Institute at the Cornell Brooks School of Public Policy, there have been “a number of efforts to dot the Is and cross the Ts in terms of the constitutionality of this” since the first major effort to ban TikTok under the Trump administration in 2020.

“You see this not just between 2020 and 2024, but also between … when these proposals were put forward and today,” Kreps said.

The law that Biden signed late last month passed Congress with unusual speed.

It received an overwhelming bipartisan vote in the House in March, less than a week after it was first revealed by top members of the Chinese Communist Party Select Committee.

The bill finally made it out of the Senate when it was attached to a package of foreign aid bills and amended to give ByteDance more time to find a buyer for TikTok. Biden signed the bill shortly after it arrived on his desk.

The project appeared to build on previous bill efforts targeting TikTok that failed to pass Congress. Some Republican-led efforts last year faced pushback from Democrats for exclusively targeting one company. Another bipartisan effort in the Senate last year took a broader approach to giving the executive branch the power to designate other apps to be considered banned.

The Protecting Americans from Controlled Applications of Foreign Adversaries Act sought to head off the weakness that paralyzed other measures. The bill gives ByteDance the ability to sell TikTok before the ban and names only TikTok in the bill, but also includes a procedure that would allow the president to designate other apps with ties to China, Russia, North Korea and Iran.

TikTok, however, still argues that the bill violates the First Amendment and singularly targets its company. TikTok also said that 360 days – the maximum time ByteDance has to sell the app before it is banned – is not enough for the company to find a new buyer.

“But in reality, there is no choice. The ‘qualified divestment’ required by law to allow TikTok to continue operating in the United States is simply not possible: not commercially, not technologically, not legally,” the company said in the complaint.

The complaint added that even if a sale were “viable,” the law would be an “extraordinary and unconstitutional assertion of power” and “would allow the government to decide that a company can no longer own and publish the innovative and unique speech platform it created.” ”

TikTok’s First Amendment defense against the Trump administration and Montana’s ban attempts were successful. But the federal law at the heart of the latest challenge differs in its focus squarely on national security. The Montana law targeted TikTok over privacy concerns, including national security.

The federal government, however, has a power advantage over national security responsibilities in Montana. U.S. District Judge Donald Molloy, in his decision to block the Montana law from going into effect in November, argued that the state did not prove the point and did not have “constitutional authority in the field of foreign affairs.”

“This presents different challenges,” said George Wang, an attorney at Columbia University’s Knight First Amendment Institute.

The Knight First Amendment Institute has spoken out against the federal and Montana law.

“The bottom line is that even if it is justification, even justifications like national security, when a law infringes on the rights of millions of Americans, the government needs to have good reasons for the law,” Wang said.

So far, he said, the government has failed to make its case.

“We can imagine all kinds of reasons why the government might be interested in doing this, and there are all kinds of scenarios about national security concerns, but that’s not enough to justify a broad ban like this. The government needs to present real and credible evidence that these harms are real and that this ban will actually address these harms,” he added.

Before voting on the bill, House lawmakers received a confidential briefing from the intelligence community about the potential threats posed by TikTok. Although some lawmakers who voted against the bill said he didn’t change their minds, the bill ended up passing easily.

Kreps said the rare and broad bipartisan support puts power behind alleged national security threats.

“There is a case where both parties, both chambers of Congress and the executive branch all say with one voice that this is a threat to national security. This acts in some ways as a test in itself, because it is very unusual, given our polarized political climate, for there to be so much unanimity,” Kreps said.

This story originally appeared on thehill.com read the full story