Achi news desk-
Legislation forcing TikTok’s parent company to sell the video-sharing platform or face a US ban received the official signature of President Joe Biden on Wednesday. But the newly minted law could face an uphill battle in court.
Critics of the sell-or-be-imprisoned ultimatum say it violates the First Amendment rights of TikTok users. The app’s owner in China, ByteDance, has already promised to sue, calling the move unconstitutional.
But the success of the court challenge is not guaranteed. Opponents of the law, which include advocacy groups such as the American Civil Liberties Union, say the government has not come close to justifying a ban on TikTok, while others say national security claims could still prevail.
For years, lawmakers on both sides of the aisle have expressed concern that Chinese authorities could force ByteDance to hand over user data in the U.S., or influence Americans by suppressing or promoting certain content on TikTok. The U.S. has yet to provide public evidence to support these claims, But some legal experts point out that political pressures have piled up regardless.
If approved, legal experts also stress that the law could set a precedent with broader implications for digital media in the US.
Here’s what you need to know.
Is the TikTok ban unconstitutional?
This is the main question. TikTok and opponents of the law argued that a ban would violate the First Amendment rights of the social media platform’s 170 million US users.
Patrick Toomey, deputy director of the ACLU’s National Security Project, said banning TikTok would “stifle free speech and limit public access” to a platform that has become a major source of information sharing.
Among the key questions will be whether the legislation interferes with the overall content of speech on TikTok, notes Alta Beatty, an assistant professor of law and computer science at Northeastern University, because content-based restrictions face a higher level of scrutiny.
ByteDance had yet to file a formal lawsuit as of late Wednesday, but ByteDance said it expects the company’s challenge to focus primarily on whether the ban infringes on those broad free speech rights. Additional litigation involving TikTok’s “commercial actors,” such as businesses and influencers who make a living on the platform, could arise, she added.
Can TikTok successfully avoid the ban in court?
TikTok is expressing confidence about the prospects of its planned challenge.
“Rest assured, we’re not going anywhere,” TikTok CEO Shu Chou said in a video response posted to X Wednesday. “The facts and the constitution are on our side, and we expect to win again.”
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Toomey also said he was optimistic that TikTok could block the move in court, noting that both users and the company “have very strong First Amendment claims.”
“Many of the calls to ban TikTok outright in the US are about making political points and rooted in anti-China sentiment,” Tomei added. “And to date, these moves to ban TikTok have not been remotely supported by concrete public evidence.”
Still, it is difficult to predict the future of any litigation, especially for cases of this nature. And from a legal perspective, legal experts say it can be difficult to cite political motivations, even if well-documented, as a reason to invalidate a law.
The battle could also drag on for some time, with the potential for appeals that could go all the way to the Supreme Court, which would likely uphold the law as it currently stands, said Gus Horwitz, a senior fellow at the University of Pennsylvania. Carey Law School.
How might the government respond to the challenge?
TikTok’s legal challenge will not go without a fight. The government will likely respond with national security claims, already prominently cited as the legislation made its way through Congress.
Toomey argues that the government has not met the high bar required to prove imminent national security risks, but some other legal experts note that it is still a strong card to play.
“One of the really unfortunate and frustrating things about national security legislation (is that) it tends to be a trump card,” Hurwitz said. “As soon as issues of national security come up, they will continue the day successfully or not.”
Horvitz added that in his opinion there are legitimate arguments for national security that can be raised here. National security can be debated because it is a federal measure, he added. This sets this scenario apart from previously unsuccessful state-level legislation seeking to ban TikTok, such as in Montana.
But national security arguments are also open to questions about why TikTok is receiving specific scrutiny.
“Personally, I believe that what TikTok is doing is not that different from other US-based companies,” Bietti said, pointing to tech giants ranging from Google to Amazon. “The question is, ‘Why ban TikTok and not the activities and surveillance carried out by Other companies in the United States?'”
If the law is approved, could there be wider implications?
Still, legal experts point out that there could be ramifications beyond TikTok in the future.
The measure was passed as part of a larger $95 billion package providing aid to Ukraine and Israel. The package also includes a provision that makes it illegal for data brokers to sell or rent “sensitive personally identifiable data” to North Korea, China, Russia, Iran or entities in those countries.
That’s met with some pushback, including from the ACLU, which says the language is written too broadly and could sweep in journalists and others who publish personal information.
“There is real reason to be concerned that the use of this law will not stop with TikTok,” Toomey said. “Looking at this point and the bigger picture, banning TikTok or forcing its sale would be a devastating blow to the US government’s decades of work to promote an open and secure global internet.”
