TikTok has officially filed its opening brief with the Federal Court as part of its legal challenge against the U.S. government’s “Foreign Adversary Controlled Applications Act”, which will force TikTok to be sold into U.S. ownership, or be banned from America and use by American citizens.
TikTok has been gearing up for its battle against the U.S. government, appointing a high profile legal team to mount its counter approach. And now, it’s documented its official reasoning for opposing the bill, which it hopes will see it remain in operation in the U.S.
As per the brief:
“TikTok is an innovative online platform used by 170 million Americans. These Americans form part of a unique global community with more than 1 billion users worldwide, with whom they create, share, and view videos “speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.” All that will end on January 19, 2025, when the Protecting Americans from Foreign Adversary Controlled Applications Act will ban TikTok throughout the country.”
This initial overview captures the evocative tone of the complaint, with TikTok’s legal team also noting that “never before has Congress silenced so much speech in a single act.”
The main emphasis of TikTok’s case is that the Foreign Adversary Controlled Applications Act uses speculative justification to enact restrictions on TikTok specifically, despite providing no evidence of an immediate threat or concern. Indeed, the complaint alleges that the primary focus is on “speculative possibility” that TikTok could be misused in future, not that it is, nor has been used as an influence vehicle in the past.
Which, as the complaint states, is based on what we know, and what’s been made publicly available about the case. We also know that senators have been briefed on the risks that TikTok poses, via meetings with cybersecurity experts from various agencies and organizations, but the information that these experts shared with senators, which some later stated was “deeply frightening”, has not been made public.
There’s a push at present to make the information from these briefings public, but due to the assumed sensitive nature of the information provided, it’s not clear that we’ll ever know what, exactly, the senators were told that prompted the majority of them to vote in favor of a TikTok ban.
Yet, even so, TikTok argues that even then, it wouldn’t matter, as the proposal is still in violation of the Constitution.
“The Act cannot survive First Amendment scrutiny at any step of the analysis: it advances no compelling interests, is not tailored, and disregards less restrictive alternatives. In addition, and independently, the Act is unconstitutional because of its unique, two-tiered system of speech regulation, which singles out TikTok for disfavor.”
Legal experts are split on this element, with respect to the power of national security to override lesser elements of legal review. In many cases, national security concerns have been used to bolster such arguments, and even override certain aspects on broader reaching grounds, but it’s not clear whether this will apply here, and whether the court will lean in TikTok’s favor in invoking the Constitution.
Also this element is particularly interesting:
“The government will deny that Congress banned TikTok, claiming the company can execute a “qualified divestiture.” But such a divestiture is not possible technologically, commercially, or legally, especially within the Act’s arbitrary 270-day timeline. Petitioners have repeatedly explained why this type of divestiture would not work, and Congress apparently never even considered whether it was possible. Even if divestiture were feasible, TikTok in the United States would still be reduced to a shell of its former self, stripped of the innovative and expressive technology that tailors content to each user.”
That seems to make it pretty clear that, no matter what, even if TikTok is sold into U.S. ownership, it won’t be coming with its full source code and highly attuned algorithm.
Which, as the complaint states, will mean that TikTok is effectively killed off in the U.S. either way if the bill is enacted, because it’s “a shell of its former self” without its all-powerful algorithm.
It’s an interesting admission, and while there may still be room for some negotiation, the complaint is pretty much in line with other reports coming from Chinese sources which suggest that Chinese officials will oppose the sale in any way they can.
Even if it means removing TikTok instead of selling. And without its algorithm, I’m not sure that buyers will be as interested, as it simply won’t be as alluring without it.
The case now moves to the next stage, with the Federal Court to examine TikTok’s complaint, and assess the viability of its legal standing.
But again, if it fails, it’s increasingly looking like TikTok, as we know it, will be gone by January.
