The Update on the TikTok Ban
In The Ticking Clock to a TikTok Stop, I discussed the TikTok ban bill then under consideration in the United States Congress. The bill aimed to address concerns over national security and data privacy, stemming from TikTok's ownership by ByteDance, a Chinese company. Fast forward to today, and the bill has not only passed both houses of Congress but has also been signed into law by President Biden. This landmark decision marks a significant moment in the ongoing tension between the U.S. and China, reflecting deeper geopolitical conflicts and raising questions about freedom of speech and digital sovereignty.
This new law gives TikTok's parent company, ByteDance, until April 24, 2025, to comply. Essentially, the law requires ByteDance to sell TikTok before that date or face an outright ban in the United States. The law will also restrict app stores from offering TikTok and prohibits hosting services from supporting the app unless the company is sold. As I mentioned in my earlier post, this U.S. action was expected to prompt litigation over the constitutionality of the law, particularly regarding its potential interference with First Amendment rights.
The U.S. government justified the law by expressing concerns that ByteDance's connections to China pose a national security threat, which, if unaddressed, could result in American users' data falling into the hands of an adversary. It was widely anticipated that if the bill became law, TikTok would challenge it in court, which is exactly what has happened.
TikTok's Legal Battles Have Begun
On May 14, 2024, a group of TikTok creators filed a lawsuit to block the law, arguing that it would have a "profound effect on American life." TikTok and ByteDance also filed a similar suit. On June 20, 2024, TikTok filed an opening brief in federal court as part of its effort to overturn what it considers an unconstitutional ban. TikTok argued that the law is based on "speculative and analytically flawed concerns about data security and content manipulation." They further contended that, even if these concerns were valid, they could be addressed through far less restrictive and more narrowly tailored means.
TikTok also claimed that allowing Congress to impose such a ban would circumvent the First Amendment of the United States Constitution, enabling the government to shut down any publisher, newspaper, or website under vague national security concerns. The U.S. Court of Appeals for the District of Columbia has scheduled oral arguments for this month (September) and has opted for fast-track consideration, eliminating the need for TikTok to seek a preliminary injunction.
Expert Opinions on TikTok's Legal Challenges
Legal experts argue that forcing TikTok to shut down based on unspecified national security threats could violate the First Amendment. They maintain that legal precedent establishes that the government cannot suppress free speech solely on undefined and potential threats. The government must demonstrate that these threats are real and that the law is the least restrictive way to address them. The court's review will use the strict scrutiny standard, which requires a compelling reason for the law and a solution that is the least restrictive available. Thus, the law could be upheld if the government proves a genuine national security risk and that the ban is the least restrictive method to mitigate that threat.
TikTok's Response to the Ban
TikTok's parent company argues that divesting from the app is neither commercially, technologically, nor legally feasible. Chinese export control laws could prevent ByteDance from selling TikTok's foundational technological components, meaning the app would need to be sold without its core infrastructure.
This raises questions about who would be willing to buy parts of the app that are not subject to these export controls. Former Treasury Secretary Steven Mnuchin has indicated plans to form a group of investors to purchase the app without its foundational technology. However, as of the date of this article, TikTok does not appear to be for sale.
TikTok is demanding access to the evidence of national security threats that was presented confidentially to Congress. None of this information has been made available to TikTok or the public.
TikTok argues that there has been no justification for banning the app and states that "The Constitution does not allow Congress to single out one free speech platform, make no findings, announce no justifications, ignore less restrictive alternatives, and discriminate based on speech and content." They added, "The act is unconstitutional and must be enjoined." TikTok and the Justice Department are seeking an expedited ruling to allow time to seek guidance from the Supreme Court if necessary.
Free Speech in the United States vs. China
The ability of TikTok to legally challenge the U.S. government's actions highlights a key difference between the United States and China in their approach to free speech and judicial independence. In the U.S., even a foreign-owned company like TikTok has the right to due process and can contest government decisions in a public court, invoking constitutional protections like the First Amendment. This legal battle, regardless of its outcome, is a public relations win for the United States. It showcases the country's commitment to upholding free speech, transparency, and the rule of law, even when faced with national security concerns. This openness is in stark contrast to China's tightly controlled environment, where media and online platforms operate under strict government oversight and dissent is rarely tolerated.
The fact that TikTok is using American legal avenues to challenge the ban is also significant. It demonstrates that, in the U.S., businesses have a platform to contest government actions, fostering a system of checks and balances that does not exist in China. This dynamic allows the U.S. to present itself as a defender of democratic principles on the global stage, emphasizing the importance of judicial fairness and freedom of expression.
The Chinese Response and Geopolitical Tensions
On the other hand, the Chinese government has criticized the U.S. decision to ban TikTok, framing it as an act of economic protectionism and an example of digital censorship. If the ban is enforced, it China likely will respond with retaliatory measures against American companies operating within its borders, which could range from increased regulatory scrutiny to outright bans. This potential escalation is not just about TikTok; it represents a broader pattern of retaliatory actions between the two nations that has been building for over a decade.
Such tit-for-tat exchanges have become a defining characteristic of U.S.-China relations in recent years, contributing to an atmosphere of mutual suspicion and strategic rivalry. Since around 2015, both countries have increasingly taken steps to protect their own technological and economic interests, often at the expense of bilateral cooperation.
This ongoing tension has led many companies to reevaluate their investments and operational strategies in China, as they navigate the increasing risks associated with a worsening geopolitical climate. The TikTok case is just another flashpoint in a series of conflicts that highlight deeper issues, including disputes over trade practices, technological dominance, human rights, and global influence. If the ban is enforced, it will further strain China's already tenuous relations with the West, accelerating a broader decline in diplomatic and economic ties.
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