Plan To Force a Sale of TikTok Likely To Face a Cataract of Legal Challenges From the Company, Its Owners, and Even Users

‘Do we really want to set the precedent that it’s a good thing to shut down communications platforms?’ a scholar of international law tells the Sun.

AP/Kiichiro Sato
The TikTok app logo. AP/Kiichiro Sato

President Biden will likely face an array of legal challenges to the divest-or-ban bill he signed regarding TikTok last week, challenges from the app’s owner, Bytedance, and even from users of the platform. Many will likely argue that a potential ban on an app used by about half of America’s population violates the First Amendment. 

When Mr. Biden signed the foreign aid bill on Wednesday, he gave Chinese-owned ByteDance 270 days to divest TikTok’s American assets or else be banned from operating in the country. The companies immediately vowed to challenge the law in court. Before intervening, though, the courts would likely consider if there is a less restrictive way to deal with the national security concerns about TikTok, one analyst tells the Sun. 

“Do we really want to set the precedent that it’s a good thing to shut down communications platforms?” the analyst, Ben Sperry, a senior scholar at the International Center for Law & Economics, tells the Sun. He filed an amicus brief in a suit against the president. “Yes, we should make sure Americans are protected, but I think we all hope for more obvious evidence of harm to America’s national security.”

The civil liberty argument that Americans can wield against the legislation is that it gives unfettered authority to the government to censor Americans on Tiktok and other channels. Mr. Biden is already facing a challenge in the Supreme Court over his alleged “Orwellian” censorship of Americans on social media. 

The law targets “the threat posed by foreign adversary controlled applications,” defined as “a person subject to the direction or control of a foreign person or entity.” So it targets not just the People’s Republic, but countries like Russia, North Korea, and Iran. 

That broad scope mitigates the risk of it becoming a bill of attainder, an expressly forbidden act that abridges due process, Mr. Sperry says. Yet, he asks, “what does it mean to be under the influence and control of a hostile foreign nation?” The legislation, as it’s written, fails to answer that question.

Legal precedent suggests that a complete ban of TikTok is not narrowly tailored. A district judge in Montana issued a preliminary injunction in November blocking a ban on TikTok’s operations in the state. The court cited several constitutional concerns with the legislation, including the First Amendment. President Trump was blocked by the courts after he issued executive orders attempting to outlaw new downloads of TikTok and the Chinese communications app, WeChat.

The first time that America said foreign control of a social media app could have national security implications, there was little pushback. That was in 2020, when the Chinese firm, Beijing Kunlun Tech, sold its gay dating app, Grindr, to an investor group after Mr. Trump warned Beijing could use personal information on the app to blackmail or influence American officials. The action was driven by a highly secretive panel, the Committee on Foreign Investment in the United States.

TikTok, in contrast, has promised to fight. “Rest assured — we aren’t going anywhere,” Tiktok’s chief executive, Shou Zi Chew, said in a video posted after Mr. Biden signed the bill on Wednesday. “The facts and the Constitution are on our side, and we expect to prevail.”

ByteDance, too, has made clear its intentions to exhaust all legal actions before considering a sale. It’s unclear whether such a sale would include TikTok’s algorithm or just its user base and the name, but it is likely that it would lower the price of the company. 

Though some argue that foreign entities do not have constitutional rights, Mr. Sperry says, “corporations that have some degree of foreign ownership are allowed to participate in the marketplace of ideas as a general matter.”

Divestiture appears even more unlikely given that a deal on tech-export grounds would also rely on cooperation from Beijing, which has made clear its opposition to a forced sale. For the economic and strategic value of TikTok to the Chinese Communist Party, foreign policy hawks say, is extraordinary.

TikTok and Bytedance did not immediately respond to the Sun’s requests to speak about their potential legal challenges. 

A broad swathe of Chinese, and even non-Chinese apps and websites, could also face scrutiny as a result of the legislation. “TikTok’s challenge skims the surface of a sea of concerns,” The New York Sun’s Aleksandra Gadzala Tirziu writes, “all rooted in Beijing’s aim of a new global order.”

Ms. Gadzala Tirziu mentions the other Chinese-run tutoring app, Gauth, the third most popular education app on Apple’s store. It’s also owned by Bytedance. 

“Other Chinese apps that are subject to the direction or control of the Chinese Communist Party — through intelligence compliance laws that make Section 702 look like child’s play — those apps should be worried and investors should stay clear,” a director of cyber and technology innovation at the Foundation for Defense of Democracies, Mark Montgomery, tells the Sun. 

Section 702 is a provision of the FISA Amendments Act of 2008 that allows the government to surveil foreigners with the goal of acquiring intelligence information.

The government could also see lawsuits from Americans themselves. Businesses and services that use TikTok to promote their products, as well as consumers of that content, might invoke their First Amendment rights to access or promote their products, Mr. Sperry says.

According one China hawk, the author of “The Great U.S.-China Tech War,” Gordon Chang, Tiktok and Bytedance would likely fail in their challenges to the new law, because it does not regulate content. It is merely based on Tiktok’s conduct.

“The Chinese-owned app, for instance, has violated every pledge it has made to protect U.S.-generated data,” Mr. Chang says. “It has, surreptitiously and illegally, pipelined that data straight to Beijing.”

Mr. Chang points to evidence that the Communist Party has used the app to foment violence in America. In 2020, a People’s Liberation Army intelligence unit at Communist China’s Houston consulate reportedly targeted Americans likely to participate in Antifa with TikTok videos on how to organize riots. 

“China’s use of the app in this circumstance constituted, in addition to an act of war, a federal crime,” Mr. Chang says. “Assets employed in the commission of a federal crime give federal authorities the right, under existing forfeiture laws, to confiscate those assets without compensation.”

“What will a federal court do? I do not know,” Mr. Chang says, “but it’s clear that China should no longer be able to use TikTok to overthrow our democracy, not to mention destroy a generation of Americans.”

Opponents, though, view the legislation as a civil libertarian nightmare. It’s “a cure worse than the disease,” Congressman Thomas Massie said on the House floor earlier in April when the bill was introduced. He mentioned other solutions, like the Fourth Amendment Is Not For Sale Act, proposed by Congressman Warren Davidson, which seeks to close loopholes allowing the government to purchase Americans’ data from big tech companies without a search warrant.

Mr. Massie compared a forced divestiture of TikTok to a dictator’s demands to an American company seeking to do business in their country. “We wouldn’t let another company take over Ford Motor Company for selling Ford cars in their country, yet that’s what we’re wanting to do here.”

Mr. Sperry invokes another analogy. He calls the unfolding battle “a cat and mouse game between technology and the law, and the law might win — or at least win enough that most people won’t use the technology anymore.” Be it a “cat,” or a “dictator,” Communist China could retaliate through measures to stop Americans from conducting business on their turf.

The New York Sun

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