TikTok’s fate in the United States took a pivotal turn this Monday as the app’s legal team, along with U.S.-based creators, faced off against the government in an appeals court. The court must decide whether to enforce a law that could either force TikTok to make significant changes or face a complete ban due to its Chinese ownership.
At the heart of the dispute is a U.S. law that requires TikTok to separate from its Chinese parent company, ByteDance, due to national security concerns. TikTok’s lawyer, Andrew Pincus, argued that this law is unprecedented and could drastically impact the free speech of 170 million American users. He stressed that TikTok operates domestically in the U.S., and its content should be protected as American speech, not subject to restrictions imposed by its foreign ownership.
The U.S. government’s concern centers on the idea that TikTok’s Chinese ownership poses a security risk. Officials fear that TikTok could be used by the Chinese government to access sensitive data or spread propaganda. Daniel Tenny, representing the government, emphasized that because ByteDance controls TikTok’s source code, the content is influenced by Chinese engineers. He argued that divestment from ByteDance is crucial to mitigate these risks.
Is TikTok Being Unfairly Targeted?
TikTok’s defense countered these claims by pointing out the lack of concrete evidence showing that the app harms U.S. interests. Pincus highlighted that other Chinese-owned apps, like Temu and Shein, are not facing similar scrutiny despite also handling sensitive data. Jeffrey Fisher, representing TikTok creators, argued that targeting TikTok specifically suggests ulterior motives. He emphasized that TikTok’s unique platform allows American creators to reach audiences in ways other social media sites cannot, making any potential ban particularly damaging.
The Challenge of Divestiture
The government argues that forcing TikTok to separate from ByteDance would address national security concerns. However, TikTok’s legal team insists that divestment would effectively amount to a ban because it would alter the platform’s fundamental operation and user experience. Pincus suggested that the government has not explored less disruptive measures, such as enhanced transparency or data disclosure requirements, to address security issues without compromising free speech.
During the hearing, Judge Neomi Rao questioned whether disclosure mechanisms could effectively address the risks posed by TikTok’s Chinese-developed source code. She noted the difficulty in assessing constantly updated code from China and hinted that stricter measures might be necessary. Despite this, the court also acknowledged the government’s prolonged efforts to negotiate with ByteDance, which led to the current law. The court might view the law as a last resort after failed attempts to find a workable solution.
Concerns of TikTok Creators
Fisher highlighted the irreplaceable nature of TikTok for many creators, arguing that there are no suitable alternatives for those who have built substantial followings on the platform. He warned that a ban or forced sale would not only disrupt creators’ livelihoods but also diminish the diversity of content available to American users. He underscored that TikTok users voluntarily choose to share their data, a right that should be respected.
First Amendment Implications
TikTok’s legal team argued that the law infringes on First Amendment rights. Pincus claimed that even if ByteDance were to divest, the resulting changes to TikTok’s algorithm and content would still violate free speech protections. Tenny countered, suggesting that a potential divestment could resolve the issue without a complete ban and that a First Amendment challenge might not hold if ByteDance chose to sell TikTok.
The appeals court is set to make a decision by early December. ByteDance faces a mid-January deadline to divest from TikTok or risk a U.S. ban. The court’s ruling will likely set a crucial precedent for how foreign-owned tech companies are regulated in the U.S., especially those with national security implications. For now, TikTok’s future—and that of its millions of American users—hangs in the balance.
