Washington – A federal appeals court upheld a The law that will ban TikTok in America The widely popular video-sharing service will face another blow in its battle with the federal government if its Chinese parent company does not sell its stake in the app in the coming months.
A panel of three judges of the U.S. Court of Appeals for the District of Columbia Circuit declined to review a petition for relief from TikTok and its Chinese parent company ByteDance, unanimously siding with the Justice Department and saying the law is constitutional.
Senior Justice Douglas Ginsburg said, “We conclude that those portions of the Act that petitioners can challenge, namely the provisions relating to TikTok and its related entities, will survive constitutional scrutiny.” majority opinion“We therefore deny the petitions.”
Congress approved A foreign aid package in April This included provisions to give TikTok nine months to break ties with ByteDance or immediately lose access to the app store and web-hosting services if US President Biden takes over. signed the bill into lawAnd it is set to take effect on January 19, subject to a one-time 90-day delay by the President if sales are ongoing by then. President-elect Donald Trump tried to ban TikTok during his first term in office, but during the presidential campaign he reversed his position and vowed to “save” the app.
Lawmakers and national security officials have long been suspicious of TikTok's ties to China. Officials from both parties have warned that the Chinese government could use TikTok to spy on its nearly 170 million American users and collect data on them or secretly influence the American public by amplifying or suppressing certain content. . He argued that this concern is legitimate, as Chinese national security laws require organizations to cooperate in intelligence gathering.
The appeals court's decision is likely to spark a Supreme Court battle over the law's ultimate fate. The parties asked the justices to make a decision by Friday so the Supreme Court would have enough time to review the case before the law takes effect. The judge may agree to hear the case and put the law on hold while he considers the arguments, or let the appeals court's decision remain as the final word.
court decision
“The First Amendment exists to protect free speech in the United States,” Ginsburg wrote in her opinion. “Here the government acted solely to protect that freedom from a foreign enemy nation and to limit that adversary's ability to collect data on people in the United States.”
The appeals court said it recognized the decision would have a “significant impact” on TikTok and its users.
“As a result, TikTok's millions of users will need to find an alternative means of communication,” Ginsburg said. “That burden is responsible for [People’s Republic of China’s] “The hybrid commercial threat is to US national security, not to the US government, which has engaged with TikTok through a multi-year process in an effort to find an alternative solution.”
The D.C. Circuit found that the government's national-security justification for banning TikTok — to counter China's efforts to collect data on Americans and limit its ability to covertly manipulate content on the platform — first Are “fully compatible” with the amendment.
“Multi-year efforts by both political branches to examine the national security risks posed by the TikTok platform and to consider potential remedies proposed by TikTok weigh heavily in favor of the Act,” Ginsburg wrote. “The government has presented solid evidence demonstrating that this Act is designed to protect national security.”
legal reasoning
TikTok and ByteDance filed a legal challenge In May the law was called “an extraordinary and unconstitutional assertion of power” based on “speculative and analytically flawed concerns about data security and content manipulation” that would suppress the speech of millions of Americans.
“There is, in fact, no alternative,” the petition says, adding that forced sales “are simply not possible: not commercially, not technically, not legally.”
The Chinese government has vowed to block the sale of TikTok's algorithms that tailor content recommendations to each user. A new buyer would be forced to recreate the algorithms that power the app. Lawyers for TikTok and ByteDance said “this kind of fundamental reengineering is not remotely possible” under the restrictions under the law.
“The platform consists of millions of lines of software code that has been painstakingly developed by thousands of engineers over many years,” the petition says.
During oral arguments in September, the appeals panel was skeptical of TikTok's argument that free expression outweighs national security concerns, but three judges were also critical of the government's stance.
TikTok lawyer Andrew Pincus said the law is “unprecedented and its impact will be staggering.”
“This law imposes extraordinary speech prohibitions based on the risks of an uncertain future,” Pincus said. “The government doesn't even come close to being satisfied with stricter checks, despite clearly less restrictive alternatives.”
Judge Mr Srinivasan said, under TikTok's logic, the US would not be able to ban a foreign country from owning a major media company in the US if there was a war between the two.
“Are you saying that Congress cannot prohibit ownership by an enemy of a major media source in the United States?” Srinivasan, an Obama appointee, asked Pincus.
When Pincus said news outlets like Politico and Business Insider are owned by foreign entities, Trump-appointed Judge Neomi Rao quickly added, “But not by foreign adversaries.”
Rao also rejected Pincus's argument that Congress has not included any evidence of its claims that the TikTok law poses a national security threat.
“I know Congress doesn't make laws all the time, but here they did,” she said. “They actually passed a law and many of your arguments want us to treat them as an agency. That's weird. It's a very weird framework to think about as our first branch of government. ”
Attorney Jeffrey Fisher, who represents TikTok creators, compared the restrictions on TikTok to the U.S. government colluding with a foreign government to hypothetically ban bookstores from selling books written by foreign authors.
Rao retorted, “We're not talking about banning Tocqueville in the United States.” “We're talking about a determination by the political branches that there is a foreign adversary that is potentially exerting covert influence in the United States. Very different.”
Ginsburg, a Reagan appointee, expressed skepticism about the notion that the law singles out TikTok.
He said, “It describes a range of companies, all of which are owned or controlled by hostile forces and subject a company to immediate need.” Find solutions to national security concerns. “That's the only company that's in that position.”
Justice Department lawyer Daniel Tenney said the data that could be collected on Americans through the app would be “quite valuable to a foreign adversary if it were trying to contact an American and make them an intelligence asset.” Tenney also talked about the risk of content manipulation by China.
“What's being targeted is a foreign company that controls many aspects of this recommendation engine and the algorithms that are used to determine what content Americans see on the app,” Tenney said. She goes.”
But Srinivasan said it is Americans' choice to use the app, regardless of how the content appears.
“The fact that this is being denied is subject to serious First Amendment scrutiny,” he said.
He later said, “What gives logical weight to the other side's First Amendment argument is that the government is not just targeting curation that takes place overseas. That's why it's targeting curation that takes place overseas.” going on, and the reason for this is concern about the material consequences of that period in America.”