TikTok, the popular social video app, sued the U.S. government on Tuesday, saying the country’s new law that could ban the app violates First Amendment rights to free speech.
President Biden last month signed into law a bill that would effectively ban the service in the U.S. if its Chinese owner, ByteDance, does not sell TikTok’s U.S. operations. Legislators backing the law said a ban or sale was necessary to address national security concerns posed by the app’s ties to China.
“There is no question: the Act will force a shutdown of TikTok by January 19, 2025, silencing the 170 million Americans who use the platform to communicate in ways that cannot be replicated elsewhere,” TikTok and ByteDance said in their filing, referring to the new law.
The Department of Justice declined to comment.
TikTok and ByteDance said in the court filing that it had been trying since 2019 to work with the U.S. government’s Committee on Foreign Investment to address security concerns. Under the terms of a deal spelled out in a 90-page draft agreement, data collected about Tik Tok users in the U.S. was to be handled by Oracle, the U.S. tech giant. The proposed agreement also called for Oracle to inspect TikTok’s programming code for vulnerabilities and for the platform’s content to be subject to independent monitoring, according to the filing in the U.S. Court of Appeals for the D.C. circuit.
If TikTok did not comply, the draft agreement called for the company to be subjected to financial penalties and also included the possibility of suspending TikTok’s operations in the U.S., the businesses said.
“The terms of that negotiated package are far less restrictive than an outright ban,” ByteDance and TikTok said in its filing.
But TikTok and ByteDance said it is unclear why the committee ultimately determined the proposed agreement was insufficient and in March 2023 “insisted that ByteDance would be required to divest the U.S. TikTok business,” according to the filing.
TikTok and ByteDance also noted the new law “offers no support for the idea” that TikTok’s Chinese ownership poses national security risks.
“Speculative risk of harm is simply not enough when First Amendment values are at stake,” the businesses said in their filing.
TikTok is still moving forward with addressing some of the security concerns by partnering with Oracle “on the migration of the U.S. platform and protected U.S. user data to Oracle’s cloud environment,” TikTok and ByteDance said in the filing.
As part of their lawsuit, TikTok and ByteDance are seeking a court order blocking the government from enforcing the new law.
“These are going to be difficult issues to thrash out,” said Carl Tobias, a law professor at University of Richmond.
Tobias said one of the challenges for TikTok and ByteDance is the government’s national security argument. “Federal courts tend to be pretty deferential to those kinds of assertions, especially from Congress,” Tobias said.