TikTok faces off with US judges as court battle over app ban begins

TikTok lawyers had their first day in federal appeals court on Monday, facing off with the US government in front of a three-judge panel – all in an attempt to block a US law that would ban the short video app unless its parent company, the Chinese-owned ByteDance, divests from the popular platform.

Presenting arguments that an outright ban violates free speech protections, TikTok and ByteDance lawyers faced tough questions from the panel of judges for about two hours on Monday.

If ByteDance loses the case, the TikTok app used by 170 million Americans could be blocked in the United States as soon as January 19th, 2025 – just one day before a new US president will be sworn into office.

TikTok and ByteDance had filed suit in May seeking an injunction to prevent the law – signed by US President Joe Biden in April – from taking effect. At the time, TikTok's CEO Shou Zi Chew had declared, "The facts and the Constitution are on our side and we expect to prevail."

Biden can extend the deadline by three months if it's believed ByteDance is making progress towards either selling or divesting TikTok's US assets by the deadline.

TikTok and the US Justice Department had requested the US Court of Appeals for the District of Columbia make its final decision on the matter by December 6th, allowing any appeals to move up to the US Supreme Court before any ban would actually take place.

The Arguments

Justice Department lawyer Daniel Tenny reiterated that the app poses a national security threat due to the massive amounts of personal data collected on Americans, asserting that the Chinese government can and has tried to covertly manipulate and sway public opinion using the collected data points.

TikTok and ByteDance lawyer Andrew Pincus argued that the US government had not demonstrated that TikTok actually poses national security risks.

Pincus also argued that the law violates the US Constitution on several grounds including First Amendment protections against the US government censoring citizen rights to free speech.

"The law before this court is unprecedented, and its effect would be staggering," Pincus told the three judges, saying "for the first time in history, Congress has expressly targeted a specific US speaker banning its speech and the speech of 170 million Americans."

US Judges Sri Srinivasan, Neomi Rao and Douglas Ginsburg make up the judiciary panel.

Driven by worries that China could access data on Americans or spy on them with the app, the US Congress passed the measure with overwhelming support.

The lawsuit claimed that if the statute is upheld, it would show that Congress can circumvent the First Amendment "by invoking national security and ordering the publisher of any individual newspaper or website to sell to avoid being shut down."

Tenny defended the law and warned of Chinese manipulation efforts.

"It's farcical to suggest that with this two billion lines of code - 40 times as big as the entire Windows operating system, changed 1,000 times every day - that somehow we're going to detect that they've changed it," Tenny said.

"There is so much happening in China outside the control of the United States that it poses a grave national security risk," he said.

Rao cited an estimate that it could take three years to review the source code, not including updates.

"So how are you supposed to have disclosure, or verified disclosure?" Rao asked Pincus.

Rao said many of TikTok's arguments appear to want the court to treat Congress as an executive branch agency, rather than a legislature that "actually passed a law."

"It's a very strange framework" for thinking about Congress, the judge added.

Ginsburg asked why is this any different from another US law that precludes foreign ownership of a broadcast license.

Srinivasan, in questioning Pincus, raised the hypothetical situation of the United States being at war with China, and whether Congress in that situation could bar foreign ownership of major media outlets operating in the United States.

Pincus said Congress probably would be able to do so, but noted that lawmakers did not include that justification in the current law.

Presidential candidates use TikTok

Unless Bytedance divests, the legislation would prohibit app stores like Apple and Alphabet's Google from offering TikTok, and would also bar internet hosting services from supporting the video app.

The case is playing out during the final weeks before the US presidential elections.

Both election campaigns for Republican presidential candidate Donald Trump and Democratic rival Vice President Kamala Harris are active on TikTok, seeking to court younger voters.

A recent survey taken in early September shows the percentage of Americans who support the government banning TikTok decreased by almost 20% from last spring’s 50%. Now just 32% of Americans say they support the ban.

The White House has said it wants to see Chinese-based ownership ended on national security grounds, but not a ban on TikTok. Trump, who unsuccessfully tried to ban TikTok in 2020, has said if elected in November he would not allow TikTok to be barred.