TikTok’s day in court

Survival of the widely popular Chinese app, TikTok, designated by the Federal Bureau of Investigation as a national security risk, could depend on a court hearing this week in Washington, D.C.

Lawyers for the US Justice Department, TikTok, and a group of the platform’s users are scheduled to argue in court on Monday over a US law prohibiting Chinese ownership of the app. TikTok, a subsidiary of tech giant ByteDance, claims that the law, signed by President Biden in April, is unconstitutional.

The law says ByteDance must divest control of TikTok by Jan. 19 or face a nationwide ban. It also precludes any ongoing relationship between TikTok’s US operations and affiliated entities controlled by a foreign adversary.

US lawmakers and security officials have been concerned that the China-based TikTok collects its users’ information, including their location, IP address, the type of device they use to access the app, and the information they type into the device’s keyboard.

TikTok has asked the court for an injunction to block the US government from enforcing the law based on First Amendment speech rights and other grounds.

Content creators who use the platform are also scheduled to make arguments in connection with similar requests to block enforcement of the law.

The dispute is playing out in the District of Columbia’s US Court of Appeals before a three-judge panel, including its Chief Judge Sri Srinivasan, Circuit Judge Neomi Rao, and Senior Circuit Judge Douglas Ginsburg.

Lawyers for the US Justice Department said in a court filing that the case involves classified information that may be disclosed only to the judges.

A spokesperson for TikTok declined to comment on the proceedings.

Legal experts say the panel may not buy TikTok’s arguments that content on the platform qualifies as TikTok or ByteDance’s own speech or that, as a foreign company, it should be afforded full constitutional protections.

“As a general matter, foreign companies don’t have constitutional rights,” Jamil Jaffer, director of the National Security Institute at George Mason University’s Antonin Scalia Law School, told Yahoo Finance at the time the case was filed.

The Supreme Court has carved out some exceptions, including a First Amendment right for US companies to make campaign contributions.

Wilson Freeman, an attorney for Pacific Legal Foundation, said his initial reaction to TikTok’s complaint was that it’s a challenge the government must take “very seriously.” He added, “I’m not surprised they led with the First Amendment claim, as it seems like the strongest of the four claims by far.”

TikTok users joined the company as plaintiffs in the case, alleging that the law violates their rights to free speech.

In March 2023, FBI Director Christopher Wray testified during a Senate Intelligence Committee hearing that TikTok “screams” of US security concerns. One reason is that under Chinese law, its government authorities can demand that TikTok hand over user data.

“ByteDance is not owned or controlled by the Chinese government. It is a private company,” TikTok CEO Shou Zi Chew testified to members of Congress that same month.

Chew also told members of Congress that he didn’t think “spying” was the right word to describe ByteDance’s access to Americans’ personal information. That said, earlier in December 2022, ByteDance admitted that its employees accessed the personal data of foreign journalists, including their location data.

Multiple US states and other countries, including Canada and the United Kingdom, have banned TikTok from government devices. Former President Donald Trump flip-flopped on whether he was in favor of banning the app after a failed attempt during his administration to ban the platform by executive order.

According to University of New Haven senior economics lecturer and lawyer Brian Marks, the panel could reason that the case is strong enough on national security grounds because users still have access to other similar platforms where they can exercise their right to speech, like Instagram, Facebook, and X (formerly Twitter).

Even if the court did validate the First Amendment claims of TikTok or its users, the company would still have to overcome another hurdle: proving that the law is intended to influence the viewpoints expressed by TikTok, rather than its stated purpose of protecting national security and user privacy.

TikTok asserted three more constitutional claims in its lawsuit.

It said the forced divestment violates the Constitution’s prohibition against bills of attainder, also known as ex post facto laws, which outlaw a once legal activity, then reach back in time to punish violators for past actions.

TikTok also claimed Congress’s law violated the Constitution’s takings clause, which says the government cannot assert ownership over private property without just compensation.

Still another of TikTok’s claims states the law violates the equal protection clause, which requires that the nation’s laws be applied equally to US citizens and entities. According to TikTok, the law singles out TikTok for punishment.

After Monday’s hearing, the appellate panel will be tasked with deciding the case. Some legal scholars expect that the novel questions presented in the case — and the high-risk financial and security issues at stake — could propel the case to the US Supreme Court.

Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on X @alexiskweed.

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