TikTok and its Chinese parent company ByteDance filed a complaint against the United States on Tuesday, saying that the law which poses an ultimatum to the popular video platform, and risks banning it from the country next year, is “unconstitutional”.
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Washington adopted a text at the end of April which obliges ByteDance to sell TikTok within twelve months, otherwise the application used by 170 million Americans would be banned.
The social network and many personalities and NGOs consider that this law violates the freedom of expression of its users, guaranteed by the First Amendment of the American Constitution.
“For the first time in history, Congress has passed a law that permanently bans one speech platform nationwide and prohibits every American from participating in an online community. “one with more than a billion people worldwide,” the company’s lawyers say in the complaint filed in federal court in Washington.
After the vote by elected officials and the promulgation by the White House, TikTok warned that it would use all possible legal avenues against the law called “Protecting Americans From Foreign Adversary Controlled Applications Act” (“protecting Americans from controlled applications by foreign adversaries”).
The promoters of this text claim suspicion of manipulation and spying on American users by Chinese authorities via TikTok.
“No choice”
By law, the platform has 270 days to find new non-Chinese investors, otherwise it will be banned in the United States. The White House may grant an additional 90 days.
“They claim that the law is not a ban because it offers ByteDance a choice (…) But in reality, there is no choice,” assert the lawyers.
They explain in the complaint that the required transfer “is simply not possible, neither commercially, nor technologically, nor legally. And certainly not within the time required by law.”
Like many associations defending freedoms, they also highlight the potential risks for other platforms.
“If Congress can do this, it can circumvent the First Amendment by invoking national security and ordering the publisher of a newspaper or website to sell to avoid being shut down,” they argue.
The legal battle could go all the way to the Supreme Court.
In 2020, TikTok successfully blocked a similar executive order from former President Donald Trump. She then filed an appeal and a judge temporarily suspended the decree, finding that the reasons given for the ban were exaggerated and freedom of expression threatened.
“Unprecedented” law
The new law aims to circumvent difficulties previously encountered, including in states that tried to ban the app.
Experts believe that the Supreme Court could be sensitive to national security arguments put forward by elected officials, without certainty.
“TikTok has won its previous challenges to the First Amendment,” commented Gautam Hans, professor of law at Cornell University, but the fact that this law is supported by both Democrats and Republicans “could encourage judges to defer to a determination by Congress that the company poses a national security risk.”
“In the absence of a public debate on the exact nature of these risks, however, it is difficult to determine why the courts should validate such an unprecedented law,” he added.
An argument that the platform largely puts forward, ensuring that “the law does not articulate any threat posed by TikTok”.
“Even statements by members of Congress and a House committee report only indicate concern about the ‘hypothetical’ possibility that TikTok could be misused in the future, without citing evidence specific,” explain the lawyers.
“These speculative concerns fall far short of what is required when First Amendment rights are at stake,” they continue.
