TikTok’s Day in Court (Video)

The survival of the wildly popular Chinese app TikTok, deemed a national security threat by the Federal Bureau of Investigation, may hinge on a court hearing next week in Washington

Lawyers for the U.S. Justice Department, TikTok and a group of users are set to argue in court Monday over a U.S. law banning Chinese ownership of the app. TikTok, a subsidiary of tech giant ByteDance, argues the law, signed by President Biden in April, is unconstitutional.

The law requires ByteDance to divest itself of control of TikTok by Jan. 19 or face a nationwide ban. It also bars any ongoing relationship between TikTok’s U.S. operations and affiliates controlled by a foreign adversary.

U.S. lawmakers and security officials are concerned that China-based TikTok collects information about its users, including their location, IP address, the type of device they use to access the app and information they type on their device’s keyboard.

TikTok asked the court for an injunction barring the U.S. government from enforcing the law, citing its First Amendment right to free speech and other grounds.

Content creators using the platform will also have to make a case for similar requests to block law enforcement.

The dispute is pending in the United States Court of Appeals for the District of Columbia and is being heard by a three-judge panel consisting of Chief Judge Sri Srinivasan, District Judge Neomi Rao and Senior District Judge Douglas Ginsburg.

U.S. Justice Department lawyers said in court documents that the case involves classified information that can only be released to judges.

A TikTok spokesman declined to comment on the matter.

Legal experts said the panel may not buy TikTok’s arguments that content posted on the platform can be considered speech by TikTok or ByteDance, and that as a foreign company it should be afforded full constitutional protection.

“Generally speaking, foreign companies have no constitutional rights,” Jamil Jaffer, director of the National Security Institute at George Mason University’s Antonin Scalia School of Law, told Yahoo Finance when the case was filed.

The Supreme Court has carved out some exceptions, including the First Amendment right for American companies to make campaign contributions.

Wilson Freeman, a lawyer for the Pacific Legal Foundation, said his initial reaction to TikTok’s complaint was that it was a challenge the government needed to take “very seriously,” adding: “I’m not surprised they started with the First Amendment claim, because that seems to be by far the strongest of the four claims.”

TikTok users joined the company as plaintiffs in the case, arguing that the law violates their right to free speech.

In March 2023, FBI Director Christopher Wray testified at a Senate Intelligence Committee hearing that TikTok was “shouting” about U.S. security concerns. One reason is that Chinese law allows government authorities to demand that TikTok hand over user data.

“ByteDance is not owned or controlled by the Chinese government. It is a private company,” TikTok CEO Shou Zi Chew testified before members of Congress that same month.

Chew also told members of Congress that he did not believe “spying” was the right word to describe ByteDance’s access to Americans’ personal data. That said, ByteDance previously admitted in December 2022 that its employees had accessed the personal data of foreign journalists, including their location data.

Many U.S. states and other countries, including Canada and the U.K., have banned TikTok from government devices. Former President Donald Trump changed his mind about whether to ban the app after his administration failed to ban the platform via executive order.

According to Brian Marks, a senior lecturer in economics and legal studies at the University of New Haven, the commission may find that the case is strong enough on national security grounds because users still have access to other similar platforms where they can exercise their right to speech, such as Instagram, Facebook and X (formerly Twitter).

Even if a court were to uphold TikTok or its users’ First Amendment claims under the U.S. Constitution, the company would still have to overcome one more hurdle: proving that the law’s purpose is to influence the views expressed by TikTok, rather than its stated purpose of protecting national security and user privacy.

TikTok raised three additional constitutional allegations in its lawsuit.

The forced divestment was found to violate the Constitution’s prohibition on deprivation laws, also known as ex post facto laws, which prohibit activities that were once lawful and then go back in time to punish violators for past actions.

TikTok also argues that Congress’s bill violates the expropriation clause of the Constitution, which states that the government cannot claim ownership of private property without just compensation.

TikTok’s next claim is that the law violates the Equal Protection Clause, which requires that the laws of the land be applied equally to U.S. citizens and entities. TikTok says the law singles out TikTok as someone to punish.

After Monday’s hearing, an appeals panel will be tasked with deciding the case. Some legal experts expect the new questions raised in the case — and the high financial and safety risks at stake — could lead to the case being sent to the U.S. Supreme Court.

Alexis Keenan is a legal reporter at Yahoo Finance. Follow Alexis on X @alexiskweed.

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