Legal A lawsuit against the US government over lifting the TikTok ban has begun. The federal appeals court, which has first instance jurisdiction, heard arguments on Monday. The company is defending itself against the federal law that bans TikTok from mid-January. As the Reuters news agency writes, lawyers for TikTok and its owner ByteDance faced tough questions.
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TikTok filed a lawsuit against the US ban in May. The first goal is an interim injunction against the enforcement of the law. The process is called TikTok and Bytedance v. Merrick B. Garland And the case is pending in the United States Court of Appeals for the District of Columbia under case number 24-1113. A three-judge panel of that court began the hearing by questioning TikTok’s outside counsel, Andrew Pincus. He argued that the US government has failed to prove that TikTok poses a threat to national security. The prohibition law also violates the US Constitution for several reasons, including the First Amendment’s protection of free speech and the prohibition on seizure.
“The legislation before this court is unprecedented and its impact will be enormous,” Reuters quotes Pincus’ statement to the judges. The lawyer said, for the first time in history, the US Congress clearly targeted a specific speaker – i.e. the TikTok app – and banned the speech of 170 million Americans who use the app. This is condemnation by law (bill of attainder), which the US Constitution also explicitly prohibits. The hearing, which was supposed to last 50 minutes, lasted almost two hours, The American daily newspaper The New York Times writes. The paper further said that some legal experts believe the appeals court will make a decision in early November.
TikTok has been declared a threat to national security
The law, passed by the US Senate with an overwhelming majority in April, gives ByteDance until January 19, 2025 – one day before the end of the term of current US President Joseph Biden – to sell TikTok’s US assets. If this does not happen, the app must be banned from app stores and thus effectively banned. According to the law, President Biden can extend the deadline by three months if he certifies that ByteDance is making significant progress towards the sale.
Bytedance is seen by all parties in the United States as a Chinese company that must bow to the requirements of the Chinese Communist Party. Politicians from both major parties in the United States are therefore warning that Chinese authorities could gain massive access to users’ data in the United States – and could also use the hugely popular application for political influence. TikTok denies this.
ByteDance has said that the sale is not technically, commercially or legally possible. The recipe for the short video service’s success is its selection algorithm, without which TikTok would have no value. The People’s Republic of China has already banned the export of the algorithm, so ByteDance cannot sell it at all. The residual value would be zero due to the separation of content into “American” and “other” according to US law. TikTok’s parent company is defending itself against a forced sale and ban and wants the law declared unconstitutional. It is said that if this does not work out, the app will be shut down instead of being sold.
Supreme Court decision likely
The lawsuit comes in the midst of the US presidential election campaign. Republican presidential candidate Donald Trump and his Democratic rival, Vice President Kamala Harris, are both active on TikTok and trying to woo young voters. Many in this target group are critical of a potential TikTok ban. For them, the short video app is an important tool for keeping track of political issues.
The White House has said it wants to end Chinese ownership of TikTok on national security grounds, not a ban on the social network. Former President Trump unsuccessfully tried to ban TikTok in 2020 during his first term. He has since changed his published opinion: Trump recently said he would not allow a ban on TikTok if he wins the election in November.
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The federal appeals court hearing of the case in the first instance is unusual, as federal appeals courts usually deal with appeals against decisions of federal district courts. However, the challenged law contains a special provision according to which lawsuits against the law must be brought exclusively in the federal appeals court of the District of Columbia. This means not only that this court has jurisdiction, but also that there are no appropriate legal remedies against the decision of this federal appeals court.
The losing party can request a new hearing before an expanded bench of the same court and/or a trial before the US Supreme Court, but has no legal right to do so. TikTok’s parent company Bytedance and the US Justice Department have asked for a decision in the case by December 6. This will allow the US Supreme Court (SCOTUS) to consider the request for review before the ban comes into effect in mid-January.
(AKN)
