TikTok creators file suit against US gov over divest-or-ban bill

TikTok content creators have joined forces, filing a lawsuit in US federal court Tuesday to challenge the recently passed TikTok divestiture bill. This is as open source data advocacy group Project Liberty announces a potential bid to purchase the short video app. Cybernews explains.

TikTok CEO Shou Chew has called the “Protecting Americans from Foreign Adversary Controlled Applications Act” unconstitutional and a violation of the US Constitution's First Amendment for the 170 million Americans who use TikTok, many for their financial livelihoods.

The bill signed into law on April 24th by US President Joe Biden, gives TikTok’s parent company, the Chinese-owned ByteDance, nine months to divest from the app or face a ban in the US.

The creators lawsuit argue that TikTok has "a profound effect on American life" and that the Act “undermines the nation’s founding principles and free marketplace of ideas.”

The law firm representing the petitioners, Davis Wright Tremaine LLP, broke the news on X. “Today we filed a First Amendment lawsuit on behalf of eight @tiktok_us creators to block the federal government’s TikTok ban,” the law firm posted.

Headquartered in Seattle, Washington, the firm employs over 600 lawyers across offices in seven other major cities in the United States, including New York, Chicago, and Los Angeles.

First Amendment rights vs national security

TikTok and ByteDance filed their own lawsuit to block the law in federal court on May 7th, claiming the ban “would devastate seven million businesses and silence 170 million Americans.”

TikTok argues it has spent billions of dollars to keep the personal data of Americans safe and free from influence and manipulation by the Chinese government – the reason US lawmakers on both sides of the aisle say they have pushed the bill through Congress.

White House security officials have said the app allows mass data collection, surveillance, and influence over the American people by Beijing creating a national security nightmare that must end.

A recent poll taken only weeks before the bill became law showed more than half of the US population believes that the Chinese government uses TikTok to “influence American public opinion.”

The TikTok lawsuit states that divestiture "is simply not possible: not commercially, not technologically, not legally ... There is no question: the Act (law) will force a shutdown of TikTok by January 19th, 2025."

Content creators and free expression

The eight petitioners include a Texas Marine Corps veteran-turned-rancher selling farm products using the TikTok Creator Fund, a Tennessee woman posting content on mental health leading to a thriving cookie business, a Maryland woman promoting Black authors and Black-owned businesses, a North Dakota college coach who makes sports commentary videos, a Mississippi hip-hop artist, and a North Carolina college grad advocating for sexual-assault survivors and criminal justice reform.

All the content creators mentioned in the lawsuit have anywhere from 126,000 to 6.8 million followers on TikTok, and it's argued that all had tried to gain the same number of followers on other social media apps without success, referencing TikTok's secret algorithm.

"Although they come from different places, professions, walks of life, and political persuasions, they are united in their view that TikTok provides them a unique and irreplaceable means to express themselves and form community," the lawsuit states.

“The Act’s ban of TikTok threatens to deprive them, and the rest of the country, of this distinctive means of expression and communication,” it said.

TikTok divest ban protest Washington DC
Giovanna Gonzalez of Chicago demonstrates outside the US Capitol following a press conference by TikTok creators to voice their opposition to the Protecting Americans from Foreign Adversary Controlled Applications Act passed last month. March 12, 2024. Image by Craig Hudson | Reuters

Besides delving into the lives of the eight content creators and the unconstitutional challenges they would face if the app were to go dark, the 33-page lawsuit also cites various legal cases and their outcomes as precedents to their cause.

“Federal courts have blocked every attempt to ban TikTok, including on the basis of unproven data security concerns… it has tried that strategy before and lost," the lawsuit states, referring to failed attempts to legally block the app in 2020 (under then President Donald Trump), and again in Montana courts last May.

The creators' suit notes that "because TikTok currently has approximately 170 million users in the United States, the fine for continuing to enable access to TikTok would be roughly $850 billion."

In response to Tuesday’s filing, a spokesperson for the US Department of Justice said the legislation "addresses critical national security concerns in a manner that is consistent with the First Amendment and other constitutional limitations. We look forward to defending the legislation in court."

Open-source data advocates want to buy TikTok

Meantime, working behind the scenes, to make the divestiture a reality, billionaire entrepreneur and former Los Angeles Dodgers owner Frank McCourt revealed on Wednesday his open data advocacy alliance, Project Liberty, is in the process of building a consortium to bid on the ByteDance-owned short-form video platform in the US.

If a purchase of TikTok were to take place, McCourt said he would “rearchitect the platform to put people in control of their digital identities and data” to create a more open, inclusive, and responsible internet.

“The foundation of our digital infrastructure is broken, and it’s time to fix it. We can, and must, do more to safeguard the health and well-being of our children, families, democracy, and society,” McCourt said in a post on Project Liberty’s website about the open-source digital plan.

“We see this potential acquisition as an incredible opportunity to catalyze an alternative to the current tech model that has colonized the internet,” he said.

The global non-profit’s research arm, the Project Liberty Institute, launched an open-source Decentralized Social Networking Protocol (DSNP) in 2021 aimed at allowing people, not corporations, to control their own data within a distributed public network infrastructure.

Supporters of the Project Liberty consortium include the inventor of the World Wide Web, Sir Tim Berners-Lee; Guggenheim Securities; law firm Kirkland & Ellis; and David Clark, senior research scientist at the MIT Computer Science and Artificial Intelligence Laboratory.

If a TikTok divestiture fails to happen, the Act would ban app stores from carrying TikTok and bar internet hosting services from supporting the app.

President Biden could extend the January 19th divest deadline by three months if he determines that ByteDance is making progress.

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