TikTok sues America to undo divest-or-die law

Nothing like folks in Beijing lecturing us on the Constitution

TikTok and its China-based parent ByteDance sued the US government today to prevent the forced sale or shutdown of the video-sharing giant.

The pair's lawsuit [PDF], filed in federal court in Washington, DC, challenges the constitutionality of H.R. 7521, the Protecting Americans from Foreign Adversary Controlled Applications Act, which was signed into law by President Biden in April.

The law forces ByteDance to either sell TikTok to a suitable owner, approved by Uncle Sam, within 270 days, or cease its operations. A 90-day extension may be granted.

US lawmakers are concerned that the Chinese government, through its ability to pressure ByteDance, could force TikTok to collect sensitive data, compromise the app with a backdoor, or push propaganda through sock puppet accounts and its content recommendation algorithm. The app maker has denied any interference from Beijing.

TikTok and ByteDance in their complaint argue that the law is blatantly unconstitutional, and thus shouldn't stand.

Banning TikTok is so obviously unconstitutional that even the act’s sponsors recognized that reality

"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," the complaint says.

The outfits contend that the divest-or-be-banned choice presented by the law is no choice at all since there's no way commercially, technically, or legally that a company sale could be completed in the allotted time. The law will force TikTok to shut down on January 19, 2025, at this rate, deplatforming the 170 million Americans who use the service, they claim.

The complaint states the law does not explain why TikTok represents a threat and that members of Congress who have raised concerns have only offered hypothetical harms without any evidence.

During a House Energy and Commerce Committee hearing on TikTok in March, Chair Cathy McMorris Rodgers (R-WA) said the law in China requires that companies cooperate with demands for access to information. Thus TikTok could be required to spy for the Chinese government.

Compare that to US telco AT&T, which reportedly was praised a decade ago in NSA documents for its "extreme willingness to help" with network surveillance.

TikTok, however, is being investigated based on its own acknowledgement that former employees misused its data to track the location of journalists through their mobile devices.

David Greene, civil liberties director at the Electronic Frontier Foundation (EFF), a US-based cyber liberties advocacy group, believes the app makers' argument has some merit.

"I think the US government will be hard-pressed to show that the law satisfies the appropriate First Amendment scrutiny," said Greene in an email to The Register.

"While US courts have in many contexts been far too deferential to the federal government’s claims of national security harms, there is no First Amendment exception for national security: the government will have to demonstrate to the court that the national security concern is real and not hypothetical or conjectural (as it appears to be in the last public ODNI report) and that a total ban on TikTok as it currently exists is the appropriately tailored means of addressing that national security concern."

The public version of the ODNI, aka the Office of the Director of National Intelligence, report [PDF], released in March, says China has been conducting election influence campaigns through TikTok, though it does so without citing a source or saying so definitively. "TikTok accounts run by a PRC [People's Republic of China] propaganda arm reportedly targeted candidates from both political parties during the US midterm election cycle in 2022," the report says.

TikTok is not the only place where Americans' data is being bought, sold, and traded in ways that we would not expect

Kate Ruane, director of the free expression project at the Center for Democracy and Technology, told The Register in a phone interview that she agrees that the statute is unconstitutional.

"The basic first step here is passing comprehensive consumer privacy legislation because TikTok is not the only place where Americans' data is being bought, sold, and traded in ways that we would not expect or want to have happen," said Ruane.

"And so forcing TikTok's ownership to change actually does not solve that problem at all and does not solve the problem of the Chinese government's access to Americans' data. The first step to doing that is passing comprehensive consumer privacy legislation."

Ruane pointed to the American Privacy Rights Act, introduced last month, as a potential first step. ®

Don't miss our conversation with former White House CIO Theresa Payton, below, on the ramifications of the TikTok sell-or-ban law in the United States.

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