TikTok Faces Possible Ban After Court Ruling Loss.
The elected president Donald Trump has shown his opposition to the law.
A panel of judges from the D.C. Circuit Court of Appeals has unanimously determined that a law which could prohibit TikTok in the United States unless its Chinese parent company, ByteDance, divests it, is constitutional. This decision comes just before the January 19 deadline imposed on ByteDance to sell the popular video app or face its expulsion from the country. This deadline coincides with the day before the second inauguration of President-elect Donald Trump, who received financial support from Jeff Yass, an investor in ByteDance.
Although Trump sought to ban TikTok during his first term, his stance has changed in this campaign, suggesting that a ban would benefit Meta, one of his main adversaries. Reports have indicated that Trump’s allies anticipated he would try to halt the ban, but options are limited. The law permits a 90-day extension at the president's discretion, only if there are advancements towards ByteDance’s separation. Trump could also instruct the Department of Justice not to enforce the law, but app store companies like Google and Apple would find themselves in a complicated position, especially if Trump changes his mind or a future administration decides to enforce the law.
The court ruled that the law could withstand rigorous scrutiny under the First Amendment and found TikTok's arguments about a potential violation of equal protection under the Fifth Amendment unconvincing. Judge Douglas Ginsburg, in the court’s opinion, emphasized that their conclusion is based on specific facts. The intense investigation into the national security risks associated with the TikTok platform and the possible solutions proposed by the company weigh in favor of the law. Concerns were raised about how China might use TikTok to collect data and manipulate recommendation algorithms in the shadows.
The court relied solely on evidence from public records to make its decision, despite many justifications that led to the law's passage being presented in classified meetings. Additionally, the judges stated that TikTok's argument about the difficulty of separating from ByteDance is actually a reflection of potential resistance from the Chinese government, rather than the law itself.
A TikTok representative, Michael Hughes, expressed hope that the Supreme Court would protect Americans' right to free speech and criticized the law, arguing that it was driven by inaccurate information, which could result in the censorship of millions of American voices. On the other hand, Attorney General Merrick Garland praised the decision, calling it an important step to prevent the Chinese government from using TikTok to collect sensitive information from citizens.
Despite Trump's opposition, many Republicans in Congress supported the law, which received strong bipartisan backing before President Joe Biden signed it. Advocates of the law argue that it is essential to protect Americans' privacy and prevent foreign influence campaigns, given that Chinese legislation allows the government to require local companies to hand over internal information for national security reasons. Although TikTok insists it operates independently of ByteDance and that U.S. data is not stored in China, legislators remain concerned that Chinese officials could influence the information that American citizens receive.
During September hearings, TikTok and a group of creators, who are also suing to block the law, argued that it would limit Americans' freedom of speech and unfairly restrict access to information. The Department of Justice defended the law, considering it appropriate to address national security risks. The three-judge panel that heard the case expressed skepticism towards the company’s arguments, questioning the viability of a more moderate approach. The ruling can be appealed to the full panel of judges of the D.C. Circuit and ultimately to the Supreme Court.
