By Michael Macagnone
CQ-Roll Call
(CQ-Roll Call) — A federal appeals court will hear oral arguments Monday in TikTok’s challenge to a law requiring a sale or ban of the app in the U.S., in a case that could determine Congress’ ability to regulate the company and other platforms for national security or other reasons.
TikTok and its China-based parent company, ByteDance, along with a group of its users, are set to urge a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit that the law undermines their free-speech rights and unconstitutionally targets the social media platform.
The law, passed by Congress earlier this year, mandates that Tiktok’s American subsidiary be divested from China-based ownership or be blocked in the United States. TikTok says it is “technologically, commercially, and legally infeasible” to divest the U.S. operations.
The Biden administration has argued in the case that intrusion into the company’s ownership is justified because of the security risks of potential Chinese government use of the platform’s trove of data and access to Americans’ cellphones.
Monday’s arguments come at the confluence of years of concern over Chinese-based ownership of the major social media platform and standoffs in Congress and the courts over thorny questions about free speech online.
Georgetown Law Center professor Anupam Chander called the case a “jump ball” at the intersection of national security and First Amendment rights.
Chander, who served as counsel to an amicus brief supporting TikTok, said the case could force the D.C. Circuit, and eventually the Supreme Court, to address whether a law restricting TikTok’s ability to use its algorithm restricted the company’s free-speech rights.
The case could have major implications for Congress’ ability to regulate social media. Congressional efforts to alter the current protections for social media companies, commonly known as Section 230, have stalled.
Chander said a ruling in Tiktok’s favor means “First Amendment challenges could be strengthened if Tiktok’s algorithmic promotion is seen as being interfered with by this statute.”
“There is no question there is a clear issue that is teed up for the D.C. Circuit,” Chander said.
TikTok has argued in court documents that “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.”
TikTok said it had offered to give the U.S. government unprecedented control over its operations in the U.S., including a potential “shutdown” option to block the service in America, but the federal government walked away from the deal.
TikTok also criticized Congress for enacting the law with little on the record supporting the supposed dangers of the platform, saying lawmakers relied on a single committee report and a handful of lawmaker statements.
“This law is a radical departure from this country’s tradition of championing an open Internet, and sets a dangerous precedent allowing the political branches to target a disfavored speech platform and force it to sell or be shut down,” a company brief said.
The Biden administration has argued in the case that the law doesn’t truly target the company’s or users’ freedom of speech, but rather the massive reams of data it has collected that could be used by the Chinese government.
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In public portions of its partially redacted brief, the Biden administration also cited news reports that employees of TikTok’s parent company had tracked U.S. journalists reporting on the company.
“The statute is aimed at national-security concerns unique to TikTok’s connection to a hostile foreign power, not at any suppression of protected speech,” the government argued.
The Biden administration argued that courts have upheld similar restrictions on foreign ownership of radio licenses, nationally chartered banks and dams, reservoirs and other infrastructure projects.
“The Act does not target activity protected by the First Amendment, as neither collection of data nor manipulation of an algorithm by a foreign power is protected activity,” the Biden administration argued.
Former President Donald Trump attempted to ban the platform in August 2020 through executive order, which was enjoined by federal courts. Congress previously passed a law banning the installation of TikTok on government-owned devices.
Before Congress passed this latest law, the Justice Department raised numerous concerns, including that TikTok collected sensitive information about Americans, that the social media company could serve as a platform for China to influence U.S. politics, and that Chinese law required the company to make its data accessible to the government.
Congress weighs in
More than four dozen members of Congress defended the law in their own brief in the case, led by House Select Committee on the Chinese Communist Party Chairman John R. Moolenaar, R-Mich., and ranking member Raja Krishnamoorthi, D-Ill.
The members argue that Congress was well within its rights to restrict the ownership of TikTok — pointing to its power over foreign relations and over interstate commerce — and that Congress had investigated the threats posed by the Chinese government for years.
“Congress has long understood how internet-based applications can be a vector exploited by foreign adversaries to compromise Americans’ devices and to surveil, covertly influence, and repress,” the brief said.
Krishnamoorthi said in an interview that he felt confident the courts would uphold the law and pushed back on the free-speech claims from TikTok. “There is no First Amendment right to harm our national security. There’s no First Amendment right to basically undermine our ability to protect ourselves,” Krishnamoorthi said.
Other members of Congress have pushed back on the free-speech arguments as well, including Sen. Josh Hawley, R-Mo., the sponsor of the bill banning the platform from government devices.
“I just think this idea that TikTok has a First Amendment right to spy on Americans and to use their platform as a back door without anybody’s consent on their phones, that that’s a First Amendment right, I mean, that’s insane. That’s totally insane,” Hawley said.
Hawley said it could be “a hugely significant case, though, in terms of its presidential value,” as the Supreme Court has grappled with the free-speech rights of social media platforms in other recent cases.
The Supreme Court avoided a definitive ruling in a pair of cases earlier this year that challenged state laws in Texas and Florida that seek to regulate social media companies and prevent discrimination against users due to their viewpoints.
However, Chander said that in “reading the tea leaves” of a six-justice concurring opinion by Justice Elena Kagan in those cases, the court seemed open to holding that a social media platform using an algorithm could be considered free speech.
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