Next week, a court will hear arguments over whether the U.S. government can ban TikTok based on evidence it doesn’t want anyone, including the social media company, to see.
The District of Columbia Court of Appeals will hear oral arguments on September 16 TikTok v. wreathTikTok’s First Amendment challenge, claiming it amounts to a ban. The fight is not just about free speech but also about whether the Justice Department can build a case using classified information that opponents cannot review or rebut. The government considers TikTok a clear national security threat but says revealing its causes would also pose a threat.
“I think the courts are going to be very cautious on this,” said Matt Schettenhelm, senior litigation analyst for technology and telecoms at Bloomberg Intelligence. edge. “Especially in a First Amendment case like this, which effectively bans one of the leading free speech platforms we have in the country because you don’t even tell the company itself the secret reasons for doing it, that’s going to cause a judge to focus on.
U.S. Department of Justice case against TikTok
TikTok’s lawsuit stems from a law signed by President Joe Biden in April. The law requires TikTok parent company ByteDance to spin off the app to a non-Chinese company within nine months; if it fails, the app will be effectively banned in the U.S. — unless the president gives it months to complete the deal . TikTok argued that the law would unconstitutionally “force a shutdown” and accused the government of taking the “unprecedented step of explicitly targeting and banning TikTok.”
In its first filing on July 28, the government laid out its defense, making a series of statements about the risks of TikTok. The claims rely on dozens of redacted pages of confidential material. The Justice Department insists it is not “attempting to prosecute the case in secret” but, citing national security concerns, requires the confidential submission to be made ex parte, meaning only one party (and a panel of judges) can see it.
Obviously, we don’t know exactly what’s in these files, but some of the redacted files give us some hints. They focused primarily on the possibility that the Chinese government could force ByteDance to hand over U.S. user data, or that it could force the company to use TikTok’s algorithms to push specific content to U.S. users.
The government argued that the national security risk posed by TikTok was so significant that it overturned First Amendment claims. The U.S. Department of Justice stated that Congress’s decision to ban TikTok was based on “a large amount of information about national security risks (including a large amount of confidential information)” and allowed TikTok to continue to operate in the United States.
One of the documents is a statement from Assistant Director of National Intelligence Kathy Blackburn. Blackburn wrote that there is “no information” that the Chinese government is using TikTok to conduct “malign foreign influence against Americans” or “gather sensitive data of Americans.” But he said there was a “risk” of this happening in the future.
Another statement came from Kevin Vorndran, assistant director of the FBI’s Counterintelligence Division. Vorndran detailed the possibility that TikTok could be a “hybrid commercial threat” in which the company’s legitimate activities serve as a backdoor through which foreign governments can gain access to U.S. data, infrastructure and technology. He said the Chinese government uses “pre-positioning tactics” as part of a “broader geopolitical and long-term strategy to undermine U.S. national security.” The government claims these efforts ” took years of planning and implementation .”
In other words, the government believes that even if China has not yet monitored U.S. users of TikTok, Can. It has raised specific questions about TikTok’s ability to harvest users’ contacts, locations and other data, saying the data could allow the Chinese government to track Americans. The U.S. Department of Justice noted that researchers can use anonymized data packages to easily identify individuals, rendering “anonymous” data meaningless.
TikTok’s suggestion algorithm could also be used to influence U.S. users, the filing said. TikTok’s “Heating” feature allows employees to “manually enhance certain content,” possibly at the direction of the Chinese government. Lawmakers from both parties have accused TikTok of promoting content critical of Israel. In a private meeting with No Labels, Rep. Mike Lawler (R., N.Y.) said protests on college campuses over the Israel-Hamas war are evidence that students are “being targeted by certain groups, entities or countries.” manipulate”. Rep. Raja Krishnamoorthi (D-Ill.), ranking member of the House Select Committee on Chinese Communist Party this new york times In April, Israel’s war with Hamas was a factor in lawmakers’ rush to regulate TikTok.
The strongest evidence, however, is not public. For example, Blackburn’s statement includes an eight-page section titled “History of Censorship and Content Manipulation of ByteDance and TikTok in the Direction of the People’s Republic of China,” but it is almost entirely redacted.
The DOJ documents also reveal the long and extensive negotiations that preceded the ban, but are also confusing. Beginning in August 2022, ByteDance and TikTok executives met with representatives from multiple agencies to discuss how to resolve security issues without divestment. By March 2023, the government considered divestment the only option. In February 2024, Congress began holding briefings on its potential threats.
During these hearings, lawmakers discussed the threat China poses to U.S. national security, the formal and informal methods of control exercised by the Chinese government over companies doing business in China, and the details of China’s control over ByteDance.
But the transcript of the briefing – which included a section discussing another unknown issue – was largely redacted. “We never get to see what lawmakers actually decided, or what actually drove their decisions,” Schettenhelm said. “There’s a missing piece here: To what extent do lawmakers think this is a real threat, and why do they need to take this extreme measure instead of something less drastic?”
TikTok fights back
TikTok argued that the government’s defense was riddled with errors, including what it called “false assertions” about what data was stored and where. The company said it does not store users’ precise locations and claimed that information in users’ contact lists is “automatically anonymized” and “cannot be used to recover” original contact information for people who are not on TikTok. TikTok said that contrary to its claims that anonymized data is not anonymous, the proposed agreement requires anonymization tools “routinely used by the U.S. government to protect sensitive information.”
The company also denied that the Chinese government could access U.S. user data or influence its algorithms. It says US user data and TikTok’s “U.S. recommendation engine” is stored in the United States by Oracle, thanks to a $1.5 billion island project called “Project Texas.” However, there are reports that after the plan was implemented, TikTok U.S. employees continued to report to Beijing ByteDance executives, a move that one former employee described as “largely cosmetic.”
Still, TikTok argued that the government’s claims about its operations were largely false. TikTok said the government ignored its broad, detailed plan to address national security concerns and that information provided by the Justice Department failed to demonstrate why a ban was necessary.
Seiten Helm, a legal expert at Bloomberg Intelligence, said Congress’ decision to single out a company is unique. TikTok argued that this was also illegal. The Constitution prohibits so-called “bills of disenfranchisement,” which single out individuals or corporations without due process. The bill bans social media sites and apps controlled by “foreign adversaries” that meet certain criteria – including having more than 1 million monthly active users and allowing user-generated content – but TikTok is the only company it mentions. The court must decide who is right.
The government “has never really explained why TikTok was subject to this different process, and I think when you do something unique like this, especially when it comes to the First Amendment, I think the court would want to see more of a rationale,” ” said Scheitenhelm.
TikTok’s future uncertain
The court is likely to decide in December to either uphold the law’s constitutionality or prevent it from taking effect. But that doesn’t necessarily end the legal saga. Schettenhelm said TikTok has multiple avenues of appeal if the court rules in favor of the government and upholds the law edge. It could ask for an en banc decision, which would be reviewed by all judges on the D.C. Circuit. TikTok could also appeal the case and ask the Supreme Court to overturn the decision.
But Schettenhelm predicted that the court may block the law from taking effect because it cannot determine whether it is constitutional. “I think that might have the effect of sending it back to Congress, who might go ahead and try it again,” Schettenhelm said. “Congress must pass a second law and the president must sign it.”
Given that the initial bill passed with overwhelming bipartisan consensus, subsequent bills are likely to pass easily. But the election results could determine whether the law takes effect. Former President Donald Trump, who tried to ban TikTok, said in March that he now opposes efforts to ban the app.
If the court rules against TikTok, the clock will continue to tick on its divestment date, and one of the country’s largest social media platforms could disappear.
