A three-judge panel from the US Court of Appeals for the District of Columbia listened to two hours of arguments in the case, which TikTok and ByteDance filed in May seeking an injunction to stop the law from going into effect.
Justice Department lawyer Daniel Tenny upheld the US government’s view that TikTok, under Chinese ownership, is a national security threat due to its access to vast amounts of personal data, arguing that “China can covertly manipulate information that Americans consume via the popular app”.
Andrew Pincus, representing TikTok and ByteDance, told Judges Sri Srinivasan, Neomi Rao, and Douglas Ginsburg that the government hadn’t shown TikTok is a real security risk. He argued the law violates multiple parts of the Constitution, including the First Amendment, which protects against government restrictions on free speech.
The law before this court is unprecedented, and its effect would be staggering. […] For the first time in history, Congress has expressly targeted a specific US speaker, banning its speech and the speech of 170 million Americans.
– Andrew Pincus, representing TikTok and ByteDance, September 2024
The law, passed by Congress and signed by President Joe Biden in April, gives ByteDance until January 19 to sell or divest TikTok’s US assets or face a ban in the US. Concerns over Chinese access to American data and potential espionage fueled the legislation, which had broad bipartisan support.
The lawsuit argued that if the law is upheld, it would set a dangerous precedent, allowing Congress to bypass the First Amendment by using national security as justification for forcing media outlets to sell or shut down.
Tenny defended the law, raising alarms over China’s potential influence, adding that China’s involvement poses a severe national security risk.
It’s farcical to suggest that with this two billion lines of code – 40 times as big as the entire Windows operating system, changed 1,000 times every day – that somehow we’re going to detect that they’ve changed it.
Judge Rao questioned how the US could ensure accurate code disclosure given that reviews could take years. Rao cited an estimate that it could take three years to review the source code, not including updates.
She also noted that TikTok’s arguments seemed to treat Congress more like an executive agency than a legislature that “actually passed a law”.
Judge Ginsburg asked how this law differs from existing laws that prevent foreign ownership of US broadcast licenses, while Judge Srinivasan brought up a hypothetical where Congress could block foreign ownership of media outlets during a war with China.
The law would prevent app stores like Apple’s and Google’s from offering TikTok and stop hosting services from supporting the app unless ByteDance sells TikTok by the deadline. Biden could extend the deadline by three months if ByteDance shows significant progress toward selling.
Both TikTok and the Justice Department requested a decision by December 6, potentially allowing the Supreme Court to weigh in before the ban takes effect.
This legal battle unfolds during the final weeks of the US presidential campaign, with both Republican candidate Donald Trump and Democratic Vice President Kamala Harris actively using TikTok to appeal to younger voters. The White House has pushed for Chinese ownership of TikTok to end on national security grounds but hasn’t called for an outright ban. Trump, who tried to ban TikTok in 2020, said if re-elected, he wouldn’t let the app be barred.
Personally, I see this mess easily getting out of hand in the months to come, so get your popcorn ready!
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