NEW YORK — Legislation forcing TikTok's parent company to sell the video-sharing platform or face a ban in the United States received President Joe Biden's formal signature on Wednesday. But the newly drafted law may have an uphill battle in court.
Critics of the sale or ban ultimatum argue that it violates TikTok users' First Amendment rights. ByteDance, the China-based owner of the app, has already promised to file a lawsuit, calling the measure unconstitutional.
But the success of the appeal before the court is not guaranteed. Opponents of the law, including advocacy organizations such as the American Civil Liberties Union, assert that the government has come no closer to justifying the TikTok ban, while others say national security claims may still prevail.
For years, lawmakers from both parties have expressed concerns that Chinese authorities might force ByteDance to hand over U.S. user data, or influence Americans by suppressing or promoting certain content on TikTok. The United States has not yet provided public evidence to support these allegations, but some legal experts suggest that political pressure has been building regardless.
If upheld, legal experts also stress that the law could set a precedent with broader ramifications for digital media in the United States.
Here's what you need to know.
Is TikTok ban unconstitutional?
This is the central question. TikTok and opponents of the law have argued that a ban would violate the First Amendment rights of the social media platform's 170 million users in the United States.
Patrick Toomey, deputy director of the ACLU's National Security Project, said banning TikTok would “stifle free speech and restrict public access” to a platform that has become a central source for sharing information.
Among the key questions is whether the legislation conflicts with the overall content of speech on TikTok, notes Elettra Beatty, an assistant professor of law and computer science at Northeastern University, because content-based restrictions meet a higher level of scrutiny.
ByteDance had not formally filed a lawsuit as of late Wednesday, but Beatty said she expects the company's challenge will focus primarily on whether the ban violates these broader free speech rights. She added that additional lawsuits may also arise involving TikTok's “commercial actors,” such as companies and influencers who make a living on the platform.
Can TIKTOK succeed in getting banned in court?
TikTok expresses confidence in the prospects of the planned challenge.
“Rest assured, we are not going anywhere,” TikTok CEO Xu Qiu said in a video response posted on X on Wednesday. “The facts and the Constitution are on our side, and we expect to prevail again.”
Toomey also said he was optimistic about the possibility of TikTok being able to block the action in court, noting that both users and the company “have very strong claims” to the First Amendment.
“Many of the calls to completely ban TikTok in the US are about political point-scoring and are rooted in anti-China sentiment,” Toomey added. “So far, these steps to remotely ban TikTok have not been supported by concrete public evidence.”
However, it is difficult to predict the future of any lawsuit, especially in this type of case. From a legal perspective, legal experts say it can be difficult to cite political motives, even if well-documented, as a basis for invalidating the law.
Gus Horowitz, a senior fellow at the University of Pennsylvania, said the fight could continue for some time, with the possibility of an appeal that could reach the Supreme Court, which would likely uphold the law because of its current composition. Cary Law School.
How can the government respond to this challenge?
TikTok's legal challenge won't go without a fight. The government is likely to respond with national security claims, which have already been cited prominently as the legislation makes its way through Congress.
Toomey asserts that the government has not met the high standards required to prove imminent risks to national security, but some other legal experts point out that it is still a strong card to play.
“One of the really unfortunate and frustrating things about national security legislation (is) that it tends to be a trump card,” Horowitz said. “Once national security issues arise, they will either prevail or they will not succeed.”
Horowitz added that he believes there are legitimate national security arguments to be made here. He added that national security could be discussed because it is a federal procedure. This distinguishes this scenario from previously unsuccessful state-level legislation seeking to ban TikTok, such as in Montana.
But national security arguments are also open to questioning why TikTok should be subject to specific scrutiny.
“Personally, I think what TikTok is doing is not that different from other companies that are based in the United States,” Beatty said, referring to tech giants ranging from Google to Amazon. “The question is: Why do we ban TikTok and not the activities and surveillance carried out by other companies in the United States?”
If the law is upheld, could there be broader ramifications?
However, legal experts point out that there could be ramifications beyond TikTok in the future.
The measure was approved as part of a larger $95 billion package providing aid to Ukraine and Israel. The package also includes a provision that makes it illegal for data brokers to sell or rent “sensitive personally identifiable data” to North Korea, China, Russia, Iran or entities in those countries.
That has faced some opposition, including from the American Civil Liberties Union, which says the language is written too broadly and could sweep across journalists and others who publish personal information.
“There is real cause for concern that the use of this law will not stop with TikTok,” Toomey said. “Given this point and the bigger picture, banning TikTok or forcing its sale would be a devastating blow to the US government’s decades of work promoting an open and secure global internet.”
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