TikTok and parent company ByteDance have filed suit against the US government over its recently-passed law that requires ByteDance to sell the platform’s US operations or face a nationwide ban.
In a complaint that TikTok said it filed on Tuesday (May 7) with the US Court of Appeals for the District of Columbia, the company described the law as “unconstitutional.”
“Congress has taken the unprecedented step of expressly singling out and banning TikTok: a vibrant online forum for protected speech and expression used by 170 million Americans to create, share, and view videos over the Internet,” stated the complaint, which can be read in full here.
“For the first time in history, Congress has enacted a law that subjects a single, named speech platform to a permanent, nationwide ban, and bars every American from participating in a unique online community with more than 1 billion people worldwide.”
The Protecting Americans From Foreign Adversary Controlled Applications Act was signed into law last month by President Joe Biden as part of a package of national security-related bills that included military aid for Israel, Taiwan and Ukraine.
Under the law, ByteDance has until January 19, 2025, to sell TikTok’s US operations or face an effective ban of the app in US app stores and web hosting services. The president can extend the deadline by another 90 days if there is evidence of a sale process underway.
“In reality, there is no choice,” TikTok and ByteDance said in the lawsuit, which names US Attorney General Merrick Garland as a defendant. “The ‘qualified divestiture’ demanded by the Act to allow TikTok to continue operating in the United States is simply not possible: not commercially, not technologically, not legally. And certainly not on the 270-day timeline required by the Act.”
The lawsuit lists three reasons why selling the US operations of TikTok isn’t possible: First, US users and content would be cut off from TikTok users and content from other countries, which would “dramatically undermine the value and viability of the US TikTok business.”
Secondly, TikTok said, the law requires moving TikTok’s source code to the buying company, and prevent an “operational relationship” between ByteDance and the new US platform.
“It would take years for an entirely new set of engineers to gain sufficient familiarity with the source code to perform the ongoing, necessary maintenance and development activities for the platform. Moreover, to keep the platform functioning, these engineers would need access to ByteDance software tools, which the Act prohibits,” the complaint stated.
Finally, the Chinese government will not permit it, the complaint stated.
“The Chinese government has made clear that it would not permit a divestment of the recommendation engine that is a key to the success of TikTok in the United States. Like the United States, China regulates the export of certain technologies originating there. China’s export control rules cover ‘information processing technologies’ such as ‘personal interactive data algorithms.’”
“The Chinese government has made clear that it would not permit a divestment of the recommendation engine that is a key to the success of TikTok in the United States.”
TikTok/ByteDance legal complaint against the US
Even if it were possible to sell TikTok’s US operations, the law “would still be an extraordinary and unconstitutional assertion of power,” the complaint stated.
“If upheld, it would allow the government to decide that a company may no longer own and publish the innovative and unique speech platform it created.”
The complaint also noted a talking point that TikTok has made before: That the company has invested billions in addressing the privacy and security concerns brought up by critics, such as the possibility that the government of China could access personal data on US users, or that the platform could be used to sow disinformation, including during an election season.
TikTok and ByteDance “have voluntarily invested more than $2 billion to build a system of technological and governance protections – sometimes referred to as ‘Project Texas’ – to help safeguard US user data and the integrity of the US TikTok platform against foreign government influence,” the complaint states.
The lawsuit also said that TikTok had come to a 90-page agreement with the Committee on Foreign Investment in the United States (CFIUS), an executive branch inter-agency committee that reviews the national security implications of foreign investment in the US.
That agreement included a “shut-down option” that would give the US government the authority to suspend TikTok in the US if violated “certain obligations” it had agreed to, the complaint stated.
“Congress tossed this tailored agreement aside, in favor of the politically expedient and punitive approach of targeting for disfavor one publisher and speaker (TikTok Inc.), one speech forum (TikTok), and that forum’s ultimate owner (ByteDance Ltd.),” the complaint stated.
“If upheld, it would allow the government to decide that a company may no longer own and publish the innovative and unique speech platform it created.”
TikTok/ByteDance legal complaint against the US
TikTok had previously signaled it planned to fight the law in court. In a statement issued on the platform shortly after President Biden signed the bill, TikTok CEO Shou Zi Chew sought to reassure TikTok users that “we aren’t going anywhere.”
Chew said that, “while we make our case in court, you’ll still be able to enjoy TikTok like you always have.”
According to a report from Reuters last month, ByteDance “would prefer” to shut down the TikTok app in the US if it fails to win in court.
Citing unnamed sources, Reuters said the US business “accounts for a small share of ByteDance’s total revenues and daily active users.”
They added that closing it down in the United States “would have limited impact” on the company’s global business and, furthermore, that, by shutting it down, rather than selling it to a US-based company, it “would not have to give up its core algorithm.”Music Business Worldwide
