Court to Hear TikTok’s Challenge to Law Forcing Divestment From China

A man holds a cellphone displaying the TikTok app on Aug. 11, 2024. Oleksii Pydsosonnii/The Epoch Times

WASHINGTON—TikTok and its Chinese parent company ByteDance face a crucial court hearing on Sept. 16 in their legal challenge to a law that could lead to the social media app’s ban in the United States as early as January 2025.

According to a law enacted in April, ByteDance has to sell the app by a mandated date, or TikTok will be banned from mobile app stores and web-hosting services. The initial deadline is Jan. 19, 2025, one day before the next presidential inauguration. Under the law, President Joe Biden could extend the deadline by three months to allow a deal to be completed.

In early May, TikTok and ByteDance filed a lawsuit in a federal appeals court in Washington, challenging the new law’s constitutionality on the grounds that the U.S. government infringed on the First Amendment rights of TikTok and its users over national security concerns.

In its complaint, ByteDance argues that the mandated divestiture is “simply not possible: not commercially, not technologically, not legally.” Weeks before that, ByteDance announced to the Chinese public on its news platform Toutiao, or “Headlines,” that it “has no plans to sell TikTok.”

The debate on national security versus freedom of speech has been the core issue of the legal battle.

“For the first time in history, Congress has enacted a law that subjects a single, named speech platform to a permanent, nationwide ban, and bars every American from participating in a unique online community with more than one billion people worldwide,” TikTok said in its petition to the U.S. Court of Appeals for the District of Columbia Circuit.

The U.S. government has maintained that the new law aims to address national security risks, not to ban TikTok. The Justice Department’s legal brief focuses on concerns about TikTok’s algorithm, which ByteDance owns, and the app’s collection of U.S. consumers’ data.

ByteDance’s Algorithm

At a Senate committee hearing earlier this year, FBI Director Christopher Wray affirmed that ByteDance owns TikTok’s algorithm and that the only way the algorithm could work is if ByteDance also has access to the data collected by TikTok.

At the hearing, Sen. Marco Rubio (R-Fla.), vice chair of the Senate Select Committee on Intelligence, asked the FBI director whether ByteDance had to comply if the Chinese Communist Party (CCP) wanted it to “put out videos that make Americans fight with each other or spread conspiracy theories and get them at each other’s throat.”

Wray confirmed that this would be the case.

“That kind of influence operation, or the different kinds of influence operations you’re describing, are extraordinarily difficult to detect, which is part of what makes the national security concerns represented by TikTok so significant.”

China has banned the export of technologies such as ByteDance’s algorithm. In August 2020, Beijing added “personalized information push service technology based on data analysis” and “artificial intelligence interactive interface” to export controls.

ByteDance and TikTok have argued that there is no evidence of the companies ever breaching U.S. national security. In response, the DOJ stated that the U.S. government is responsible for preventive measures.

“China has adopted a strategy of pre-positioning assets for malign use at a point of maximum utility for the Chinese government,” the Justice Department stated in its brief filed in July.

A study released last month by Rutgers University found that TikTok’s algorithms “actively suppress content critical of the Chinese Communist Party (CCP) while simultaneously boosting pro-China propaganda and promoting distracting, irrelevant content.”

FBI Director Christopher Wray (C) heads into a closed session of the Senate Select Committee on Intelligence in Washington on March 11, 2024 Chip Somodevilla/Getty Images

TikTok’s Data Collection

TikTok has repeatedly maintained that it is independent from its Chinese parent company. According to TikTok, its U.S. customer data are stored in Virginia and backed up in Singapore, and it has never, and will never, share its U.S. data with the Chinese regime.

However, according to China’s counterespionage law, ByteDance must hand over data on U.S. users if requested.

The DOJ stated in its brief that TikTok employees could communicate directly with ByteDance engineers in China via an internal web-suite system called “Lark,” which also went by the name “Feishu.”

TikTok employees had “sent significant amounts of restricted U.S. user data” through Lark channels to “address various operations issues,” according to the court filing. The DOJ noted that “certain sensitive U.S. person data” were being stored on Chinese servers and accessible to ByteDance employees in China.

In the past several years, TikTok and the U.S. government have negotiated with the goal of mitigating the security concerns about U.S. users’ data.

In July 2022, TikTok rolled out “Project Texas”—a proposal for Texas-based Oracle to store TikTok data and review its code and software. In March 2023, the U.S. government deemed TikTok’s final proposed agreement insufficient to address the national security risks.

Sen. Mark Warner (D-Va.), chair of the Select Intelligence Committee, spoke about Project Texas during the Senate debate before the vote on the TikTok bill.

He said that it “does not resolve the United States national security concern about ByteDance’s ownership of TikTok” because it would “still allow TikTok’s algorithm, source code, and development activities to remain in China” and “under ByteDance control and subject to the Chinese government’s exploitation.”

TikTok’s data collection from its 170 million U.S. users also poses an artificial intelligence risk, according to former national security officials.

“The CCP can exploit this massive trove of sensitive data to power sophisticated artificial intelligence (AI) capabilities that can then be used to identify Americans for intelligence collection, to conduct advanced electronic and human intelligence operations, and may even be weaponized to undermine the political and economic stability of the United States and our allies,” they wrote in court documents.

ByteDance and the DOJ have asked the judges to rule by Dec. 6 so that the case can be reviewed by the Supreme Court, if necessary, before the January deadline.

Separately, the federal government filed suit against TikTok and ByteDance in August, alleging that they failed to ensure data privacy for children using the app.

The Federal Trade Commission and the Department of Justice accused TikTok of breaching a 2019 court order and continuing to mishandle data from children younger than 13. According to the complaint, the defendants could face about $51,000 “for each violation of the rule assessed after January 10, 2024.” The 2019 order imposed a $5.7 million penalty.

Frank Fang, Sam Dorman, and Reuters contributed to this report.