TikTok presents its First Amendment case

TikTok says the government did not adequately consider viable alternative options before moving forward with a law that could ban the platform in the US. TikTok, whose parent company ByteDance is based in China, claims it provided the US government with an extensive and detailed plan to mitigate national security risks and that this plan was largely ignored when Congress passed a law with a huge impact on the speech.

In petitions filed in D.C. Circuit Court on Thursday, both TikTok It is a group of creators on the platform who filed their own lawsuit explained why they believe the new law violates the First Amendment. The court is scheduled to hear oral arguments in the case on September 16, just a few months before the current divestment or ban deadline of January 19, 2025.

The Protecting Americans from Controlled Applications of Foreign Adversaries Act would effectively ban TikTok from operating in the US unless it divested from ByteDance by the deadline. The president has the option to slightly extend that deadline if he sees progress toward an agreement. But spinning off TikTok isn’t entirely straightforward, given the limited number of potential buyers and the fact that Chinese export law would likely prevent the sale of its coveted recommendation algorithm.

But lawmakers who supported the legislation said divestment is necessary to protect national security — both because they fear that the Chinese government could access U.S. users’ information because of the China-based company’s ownership, and because they fear that ByteDance could be pressured by the Chinese government. to tip the scales in the algorithm to spread propaganda in the US. TikTok denies this is happening or could happen in the future, saying its operations are separate from ByteDance.

The broad strokes of TikTok’s arguments have already been presented in the complaints. But the new documents provide a broader view of how TikTok engaged the U.S. government over several years with detailed plans for how it could mitigate national security concerns while continuing its operations.

In an appendix, TikTok presented hundreds of pages of communications with the US government, including presentations the company made to the Committee on Foreign Investment in the US (CFIUS) as it assessed national security risks arising from its ownership configuration. A presentation explains the basics of how its algorithm figures out what to recommend users watch next, as well as a detailed plan for mitigating the risk of improper access to US users’ data. It goes so far as to include a floor plan of a “Dedicated Transparency Center,” through its collaboration with Oracle, where a specific group of employees in TikTok’s U.S. data operations could access source code in a computing environment. safe. According to the slideshow, no ByteDance employees would be allowed in the space.

TikTok called the law “unprecedented,” adding: “[n]Never before has Congress expressly singled out and closed a specific speech forum. Never before has Congress silenced so much speech in a single act.”

Courts generally apply a standard known as strict scrutiny in these types of speech cases – the government must have a compelling interest in restricting speech, and the restriction must be narrowly tailored to achieve its objective.

TikTok claims that Congress left the court “almost nothing to review” when examining “such an extraordinary restriction of speech.” The company claims that Congress failed to produce conclusions that justified its reasoning behind the law, leaving only statements from individual members of Congress. for the court to hang up. (Many of these statements are included in an appendix archived by TikTok.)

“There is no indication that Congress has even considered TikTok Inc.’s exhaustive, multi-year efforts to address the government’s concerns that the Chinese subsidiaries of its private parent company, ByteDance Ltd., support the TikTok platform – concerns that also would apply to many other companies operating in China,” TikTok wrote in its summary. Lawmakers received confidential briefings before their votes, which some say impacted or solidified their final position on the bill. But the public still does not have access to the information contained in these briefings, even though some lawmakers have pushed to declassify them.

The company also said that CFIUS, which was tasked with evaluating its risk mitigation plan in the first place, did not provide a substantive explanation for why it took such a hard line on divestiture in March 2023. TikTok claims that when explained why divestment was not possible and asked to meet with government officials, but received “no meaningful response.” CFIUS and DOJ did not immediately respond to requests for comment.

The text of the draft National Security Agreement that TikTok submitted to CFIUS was included in an appendix filed with the court. The draft included proposed changes, such as creating TikTok USA Data Security Inc., a subsidiary that would be tasked with managing operations involving US user data, as well as strong oversight by the agencies that make up CFIUS. TikTok said it has already implemented many of its plans voluntarily through the $2 billion Project Texas. Still, recent reports have raised questions about the effectiveness of this project for national security purposes. In a report in Fortune Of aprilFormer TikTok employees said the project was “largely cosmetic” and that workers still engage with China-based ByteDance executives.

Terrence Clark, a Justice Department spokesman, said in a statement emailed to O Border that the agency and intelligence officials have “consistently warned about the threat from autocratic nations who can weaponize technology – like the apps and software that run on our phones – to use against us. This threat is compounded when these autocratic nations demand that companies under their control hand over sensitive data to the government in secret.”

Regardless, the court will have to consider whether the US government should have considered a less speech-restrictive avenue to achieve its national security goals, and TikTok says it should have done so. “In short, Congress took a sledgehammer without even considering whether a scalpel would suffice,” TikTok wrote in its report. “It ordered the closure of one of the largest speech platforms in the United States and left petitioners – and the public – to guess why a wide range of less restrictive alternatives to speech were disregarded. The First Amendment requires much more.”