US TikTok Ban Case Pitches Free Speech Against National Security. Who Wins? – National

A legal battle between TikTok and the US government over a law that could ban the social media platform in the country pits two key principles against each other: national security versus freedom of expression.

During a more than two-hour appearance before a federal appeals court in Washington earlier this week, TikTok argued that a U.S. law that forces the platform to sever ties with China-based parent company ByteDance or risk a ban in mid-January is unconstitutional under the First Amendment.

“The legislation before this court is unprecedented and its implications would be staggering,” Andrew Pincus, the attorney defending TikTok and ByteDance, told the three-judge panel on Monday.

He warned that a ban would violate not only the freedom of speech of a US entity, but also of the 170 million Americans who use the platform, including content creators and businesses that rely on TikTok for their livelihoods.

Daniel Tenny, a lawyer for the U.S. Department of Justice, countered that the government is concerned that TikTok’s Chinese ownership makes the valuable user data it collects vulnerable to capture by the Chinese government through coercion. While many other companies collect and share data for targeted marketing and customizing user experiences, he argued that TikTok is unique.

“The problem is that that same data is extremely valuable to a foreign adversary trying to compromise the security of the United States,” he said.

The justices must now make a decision in the case, which is likely to take weeks. TikTok and the Justice Department have asked for a ruling by Dec. 6, which would allow the U.S. Supreme Court to consider a potential appeal before a Jan. 19 deadline for ByteDance to sell TikTok’s U.S. assets.

The question now is which argument will win. Experts are not sure that TikTok will be successful.

“You have these two constitutional principles that are clashing … and I don’t think you can necessarily say that one always trumps the other,” said Alex Bolton, program manager at the University of Washington’s Tech Policy Lab, which researches the intersection of law, politics, cybersecurity and other technology issues.

That said, he added, “there is a general deference to Congress when Congress and the president are on the same side on this issue.”

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US President Joe Biden signed the bill into law in April, after it was overwhelmingly approved by the US House of Representatives and Senate in March.

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Under the law, Biden could extend the January deadline by three months if he certifies that ByteDance is making significant progress toward a sale. But ByteDance has made clear it has no plans to divest, and TikTok says it has taken steps to protect U.S. user data.

Both sides were asked tough questions by the judges during Monday’s hearing.

At one point, Chief Justice Sri Srinivasan said the government’s efforts to crack down on content manipulation raised alarm bells and would have consequences for people receiving messages through TikTok.

Tenny, the Justice Department attorney, responded by arguing that the law is not aimed at TikTok users or creators and that its impact on them is only indirect.

But the questions for TikTok seemed much more skeptical, “even sarcastic at times,” said Alan Rozenshtein, a law professor at the University of Minnesota. He said that suggested the company’s arguments weren’t persuasive.

“When one side gets all the attention, that means that side is either very advantaged or very disadvantaged,” he said. “In this case, I think it’s the latter.”

Part of the problem TikTok faces, Rozenshtein said, is that while the First Amendment guarantees the ability to speak freely without government impediment, “ideally that should happen in a place where it’s fair and not manipulated.”

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The judges asked Pincus, the lawyer for TikTok and ByteDance, whether he believed the government has any latitude to protect national security by restricting foreign media companies, especially if that foreign country is an adversary of the U.S.

Srinivasan raised the hypothetical situation that the U.S. is at war with China, and whether Congress could ban foreign ownership of major media outlets operating in America in that situation. Pincus said Congress likely could do that, but noted that lawmakers have not included that justification in current law.

TikTok has also argued that the government has not sufficiently demonstrated that the platform’s algorithm can be manipulated in China’s favor (which the Justice Department says is difficult to detect) or that the app poses a significant threat to users’ privacy.

Some of the information in the government’s court documents has been significantly omitted, suggesting it may be classified information about China.

Rozenshtein said the government has no legal obligation to share confidential information with the company because the lawsuit against TikTok is a civil matter.

In one of the redacted statements filed in late July, the Justice Department alleged that TikTok had followed instructions from the Chinese government regarding content on its platform, without providing additional details about when or why those incidents occurred.

Casey Blackburn, a senior U.S. intelligence official, wrote in a legal brief that ByteDance and TikTok “took action in response” to Chinese government demands “to censor content outside of China.”

While the intelligence community had “no information” that this had happened on the platform that TikTok operates in the US, Blackburn said it could happen.

According to Bolton, other social media companies may also be keeping a close eye on the case for potential implications for their industries.

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A U.S. law, Section 230, protects social media platforms from liability for publishing content from independent users, setting them apart from traditional media companies such as newspapers.

He said TikTok’s argument for its own right to free speech could jeopardize that immunity if the judges side with the company.

“It depends on whose First Amendment rights they’re protecting,” Bolton said.

“It seems like TikTok is going a little bit crazy to do whatever it can to protect its interests… But in doing so, it could expose itself to other risks.”

The justices also heard Monday from a lawyer representing content creators who say they would lose money and revenue if TikTok were banned and that the U.S. law would also violate their freedom of expression.

The creators have joined the government’s lawsuit. This lawsuit is separate from another lawsuit filed by creators against the law.

According to experts, the creators’ argument about freedom of speech loses traction when other platforms are available. This is despite the fact that creators emphasize that TikTok offers unique opportunities that have boosted their businesses and that other platforms cannot match.

“The more experienced TikTok creators have been diversifying into other platforms for years in anticipation of this case,” Rozenshtein said. “People have the right to choose which platform they use, but the availability of other platforms makes the stakes lower.”

Other companies and designers could also create an algorithm that matches — or even one day copies — the algorithm that makes TikTok and its supporters so special, Bolton said.

— with files from The Associated Press and Reuters