Legislation forcing TikTok’s parent company, ByteDance, to sell the video-sharing platform or face a ban in the U.S. has received President Joe Biden’s official signoff. However, the newly minted law could face an uphill battle in court.
Critics of the sell-or-be-banned ultimatum argue that it violates TikTok users’ First Amendment rights. ByteDance has already promised to sue, calling the measure unconstitutional. But a court challenge’s success is not is not guaranteed.
Opponents of the law, including advocacy organizations like the American Civil Liberties Union, maintain that the government hasn’t come close to justifying banning TikTok. Others say national-security claims could still prevail. For years, lawmakers on both sides of the aisle have expressed concerns that Chinese authorities could force ByteDance to hand over U.S. user data or influence Americans by suppressing or promoting certain content on TikTok.
The U.S. has yet to provide public evidence to support those claims, but some legal experts note that political pressures have piled up regardless. If upheld, legal experts also stress that the law could set a precedent carrying wider ramifications for digital media in the U.S.
One central question is whether the legislation interferes with the overall content of speech on TikTok. Elettra Bietti, an assistant professor of law and computer science at Northeastern University, notes that content-based restrictions meet a higher level of scrutiny. ByteDance had yet to officially file a lawsuit by late Wednesday, but Bietti expects the company’s challenge to primarily focus on whether a ban infringes on these wider free-speech rights.
TikTok is expressing confidence about the prospects of its planned challenge. “Rest assured, we aren’t going anywhere,” TikTok CEO Shou Chew said in a video response posted to TikTok Wednesday. “The facts and the Constitution are on our side, and we expect to prevail again.”
Patrick Toomey, deputy director of the ACLU’s National Security Project, is also optimistic about the possibility of TikTok being able to block the measure in court. He notes that both users and the company “have extremely strong” First Amendment claims.
However, the future of any litigation is hard to predict. Gus Hurwitz, a senior fellow at the University of Pennsylvania’s Carey Law School, says that the battle could string along for some time, with the potential for appeals that could go all the way to the Supreme Court.
TikTok’s legal challenge won’t go on without a fight. The government will probably respond with national-security claims, which were already cited prominently as the legislation made its way through Congress. Toomey maintains that the government hasn’t met the high bar required to prove imminent national-security risks, but some other legal experts note that it’s still a strong card to play.
Hurwitz acknowledges that there are legitimate national-security arguments that could be brought up here. He adds that national security can be argued because it’s a federal measure, setting this scenario apart from previously unsuccessful state-level legislation seeking to ban TikTok.
However, national-security arguments are also vulnerable to questioning as to why TikTok is getting specific scrutiny. Bietti points out that TikTok’s activities are not that different from other U.S.-based tech giants. She asks, “Why ban TikTok and not the activities and the surveillance carried out by other companies in the United States?”
Legal experts note that there could be repercussions beyond TikTok in the future. The measure was passed as part of a larger $95 billion package that provides aid to Ukraine and Israel. The package also includes a provision that makes it illegal for data brokers to sell or rent “personally identifiable sensitive data” to North Korea, China, Russia, Iran, or entities in those countries. This has encountered some pushback, including from the ACLU, which says the language is written too broadly and could sweep in journalists and others who publish personal information.
“There’s real reason to be concerned that the use of this law will not stop with TikTok,” Toomey said. “Looking at that point and the bigger picture, banning TikTok or forcing its sale would be a devastating blow to the U.S. government’s decades of work promoting an open and secure global internet.”
