TikTok is deploying an array of legal arguments to fight recently passed divestment legislation, among them the Chinese government’s refusal to allow parent company ByteDance to divest from the platform’s potent algorithm.
In its opening brief filed on Thursday, TikTok argues it is unconstitutional for Congress to ban TikTok if ByteDance does not divest from the platform in the next nine months.
“Just as the United States restricts the export of U.S.-origin technologies (e.g., certain computer chips), the Chinese government regulates the transfer of technologies developed in China. The Chinese government has made clear in public statements that it would not permit a forced divestment of the recommendation engine,” TikTok’s attorneys wrote in a section of the briefing on the legal infeasibility of a TikTok ban.
TikTok believes its First Amendment rights are being violated and argues Congress failed to consider a less-stringent approach to addressing concerns surrounding TikTok. The platform’s attorneys also argued the legislation is an unconstitutional bill of attainder for singling out TikTok and violates the Takings Clause by failing to compensate TikTok despite destroying its business.
Right now, TikTok continues to operate in the U.S. for an estimated 170 million active users, many of whom are Millennials or part of Generation Z.
The company is suing the Justice Department over bipartisan legislation signed by President Joe Biden, which banned TikTok from operating in the U.S. if ByteDance does not divest from the platform in the next nine months. Biden signed the TikTok legislation as part of a $95 billion foreign aid package for Ukraine, Israel, and the Indo-Pacific.
“In its own briefing, TikTok is doing the Department of Justice’s work for them. The company seems to think that Beijing’s export restrictions on its highly-prized algorithm is an adequate excuse to protect it from political scrutiny in Washington. Good luck with that tortured logic,” American Foreign Policy Council senior fellow Michael Sobolik told National Review. Sobolik is a China expert and recently wrote a book on its Belt and Road Initiative, Countering China’s Great Game.
“If anything, TikTok’s own legal defense underscores the DOJ’s national security concerns about the Chinese Communist Party’s control over the app,” Sobolik added.
Policy-makers have been warning about ByteDance’s apparent ties to the Chinese Communist Party since the Trump administration, and the company lobbied on Capitol Hill to change people’s perceptions.
But, its most recent lobbying campaign backfired when TikTok urged its users to call their representative, leading to a flurry of calls from teenagers and alleged threats against members of Congress. TikTok’s lobbying campaign failed to prevent bipartisan legislation from passing the House earlier this year, a separate bill that ultimately paved the way for the legislation Biden signed.
Former president Donald Trump changed his mind on TikTok and opposed the ban for supposedly benefitting Facebook after a pressure campaign from Republican megadonor Jeffrey Yass. Trump joined TikTok in early June and quickly racked up over a million followers, surpassing the Biden campaign’s TikTok account.