TikTok says government is ‘out of touch’ over possible ban

The Biden administration’s new law mandating the sale or ban of TikTok is the unconstitutional result of “political grandstanding” and should be overturned, TikTok’s lawyers said Thursday in a court brief marking the start of a of the most important legal battles in the history of the American Internet.

The briefs, submitted by TikTok and a group of eight creators, Widespread arguments over a law requiring China-based TikTok owner ByteDance to sell its U.S. business by January. 19 or face a nationwide ban that would violate Americans’ First Amendment rights to free speech.

“Never before has Congress silenced so much speech in a single act,” TikTok’s brief states. The law “sets a dangerous precedent by allowing political branches to target a disfavored speech platform and force it to sell or shut down.”

But TikTok also took offense by sharing for the first time internal documents from years of failed negotiations with the federal government that it says show the administration was not acting in good faith.

The company included a roughly 100-page draft national security agreement that it presented to the government in August 2022 in hopes of addressing its concerns — a proposal that would have given federal officials extraordinary power to shape and overseeing TikTok’s operations in the United States, including a nationwide murder. switch The government could deploy if it thought the app remained a threat.


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The Biden administration declined the offer, arguing that it was insufficient to neutralize their concerns, but without detailing why. In First Amendment cases, justices have traditionally called on the government to pursue its goals with as little restrictive impact on Americans’ speech as possible.

The high-profile brawl in Washington could have a dramatic impact on the future of online discourse. Compliance with the law could decimate a cornerstone of online information and entertainment, used by 170 million people nationwide. But overturning it would rebuke a largely bipartisan act of Congress and weaken one of its few significant pieces of tech legislation in decades.

The administration has said the law is essential to protecting national security, citing concerns that the Chinese government could boost propaganda through the popular app’s video recommendations or spy on Americans’ personal lives — something it has not done. demonstrated no evidence. The Justice Department, which declined to comment to the Washington Post, is expected to formally respond to TikTok’s brief next month.

But TikTok argued in its brief that the law would turn the U.S. app into an “island” where American users would be isolated from videos created outside their national borders and would have an “experience detached from the rest of the global internet.” – an echo. fragmented and repressive Chinese laws on the Internet that Americans have long criticized.

A group of TikTok creators also filed a lawsuit last month, thanks to funding from TikTok; The files have since been consolidated. In a legal brief Thursday, the creators — a cookie baker in Memphis, a skin care entrepreneur in Atlanta, a football coach in North Dakota — said the law would deal a “devastating blow” to their communities online and to their livelihoods.

Topher Townsend, an Air Force veteran and conservative rapper from Mississippi, said the law “betrays the values ​​I sought to protect.” Brian Firebaugh, a Texas rancher who posts under @cattleguy, added: “If you ban TikTok, you ban my lifestyle. »

TikTok’s proposal followed years of negotiations with the Committee on Foreign Investment in the United States, a multi-agency federal group known as CFIUS that reviews trade deals for national security risks. The company said the group abruptly ended negotiations without a clear explanation. (An administration official said last month that the company was told a forced sale was the only way forward.)

TikTok also provided the court with a last-ditch letter that ByteDance’s lawyers sent in April to a Justice Department official, pleading for talks to resume. In the 13-page letter, lawyers said the government offered only “vague and inconsistent responses” to the company’s concerns and seemed stuck to a position “detached from reality.”

Although the company remained silent to protect the negotiations’ confidentiality agreements, the lawyers argued, they were repeatedly undermined by “problematic and damaging” comments from administration officials and leaks to the media.

“The company approached this process responsibly and constructively in the face of … an extraordinary public campaign against it, increasingly led by the same U.S. government officials” involved in the negotiations, the lawyers wrote. “We fear…that CFIUS is being compromised by political grandstanding.”

In its brief, TikTok attacked the government’s reliance on “speculative” concerns and “all of Congress’s ‘cans’, ‘coulds’, ‘mights’ and ‘potentials’ in the deliberations that have preceded the adoption of the law.

“Congress used a gavel without even considering whether a scalpel would suffice,” the brief says.

The law, the brief adds, suffers from a “fatal” constitutional flaw: It refers to TikTok by name while providing other “applications controlled by foreign adversaries” a review process, which TikTok has called “ unique two-level system of speech regulation. “

“Congress itself established a generally applicable standard and process” and denied TikTok “only the protections…for no reason that it saw fit to share,” the brief says. “It is a powerful indication that punishing [TikTok] It was the goal.

In its submission, TikTok claims that a sale would be financially and technically impossible within the one-year deadline set by the government and would in principle guarantee a ban. Previous ban attempts by the Trump administration and the state of Montana were rejected by the courts due to government overreach.

The TikTok app runs on approximately 2 billion lines of code written and maintained by more than 4,000 software engineers, the company said; A new buyer will largely have to start from scratch. And any sales would likely be blocked by the Chinese government, which added recommendation algorithms — the backbone of TikTok — to its export control list after Trump’s ban order failed in 2020.

Separating TikTok’s U.S. app from the ByteDance engineers in China who built it and the global sales, marketing and creator relations teams who maintain it would dismantle its operations into a “shell of itself.” even “. » argued the memoir. It would also put the company at an unfair disadvantage compared to U.S.-based companies, such as Meta and Microsoft, that employ technical staff in China.

In a statement filed alongside the brief, TikTok chief operating officer Adam Presser sought to drive home the value of Americans’ connection with the rest of the world. U.S. users posted more than 5 billion videos last year, he said, and half of the 13 trillion views they received came from overseas viewers. A quarter of the videos watched by Americans also came from outside the country.

Doubts about TikTok’s survival in the United States have already hurt the company, Presser said, adding that “competitors have aggressively tried to recruit our talent” since the law was passed.

The briefs kick off an accelerated timetable ordered last month by a panel of judges on the U.S. Court of Appeals for the D.C. Circuit. TikTok and the Justice Department have asked the court to issue a decision by December. 6, in order to allow possible review by the Supreme Court before the law comes into force. Oral arguments are expected to begin in September. 16 – just four months until January 16. Deadline for 19 dives.

Because the law on sale or prohibition makes the court of appeal the “exclusive jurisdiction” for any challenge, the brief offers TikTok one of its only chances to defend itself in court. Unlike district court, where the fact-finding process involves presenting evidence and calling witnesses, appellate judges review legal briefs and weigh in on constitutional arguments, and the only way to overturn their decision is to go through the Supreme Court.

Along with its brief, TikTok filed hundreds of pages of supporting documents, including statements from experts retained by TikTok who represented the company’s interests.

Christopher Simkins, a former CFIUS negotiator and DOJ investigator, said TikTok’s proposal was “the most sophisticated and thorough mitigation agreement” he has seen in decades of examining similar contracts .

Randal Milch, a law professor at New York University, pointed to the complexity of transactions between technology companies to argue that the law was in fact a ban because an option to force a sale according to the government’s timetable was “totally illusory”.

And Steven Weber, a professor at the University of California, Berkeley, said the government’s concerns about propaganda, disinformation and data security were “industry-wide problems that are not unique to TikTok.”

The data collected by TikTok is “not significantly different” from that collected by Google, Facebook and Snapchat, he said, and many American technology companies have subsidiaries based in China which “therefore face the same theoretical risk “.

“There is no obvious national security justification for the law to focus particularly on TikTok,” he wrote. “It is arbitrary to single out a market player for political issues facing an entire industry. »

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