You can see the Tik Tok application on the iPhone in this photo. Jaaparriens/Nur Photo Via Getty Images Washington CNN The challenge of the court triggered a historic legal struggle, which will determine whether the security concerns of the United States about Tik Tok's connection with China will exceed the First Amendment rights of 170 million American users in Tik Tok.
This case concerns Tik Tok's life and death. If it loses, Tik Tok may be banned from entering the US App Store unless its Chinese parent company ByteDance sells the app to a non-China entity before mid-January 2025.
In a petition filed with the U.S. Court of Appeals for the District of Columbia Circuit on Tuesday, Tik Tok and ByteDance claimed that the law was unconstitutional because it stifled American speech and prevented them from obtaining legal information.
The petition claims that the U.S. government has "taken unprecedented measures to explicitly single out and ban" this short video application, which is an unconstitutional exercise of the power of Congress.
"For the first time in history," the petition said, "Congress enacted a law to permanently ban a single named speech platform nationwide and prohibit every American from participating in a unique online community with a global population of more than 1 billion."
The White House referred questions about Tik Tok's legal challenges to the Justice Department, which did not immediately respond to requests for comment.
Prior to this, the United States had been accusing Tik Tok's relationship with China for years, which might expose Americans' personal information to the China administration.
Debate on data sharing
Tik Tok strongly denied that he had provided American user data to China government officials, and said that he had taken measures to protect this information by hosting the data on the servers of American technology giant Oracle Bone Inscriptions.
According to the petition, these initiatives are part of a 90-page draft agreement submitted to the Committee on Foreign Investment in the United States, a multi-agency body that has been reviewing Tik Tok' s business in the United States since 2019 According to the petition, the same draft agreement also includes that if Tik Tok or ByteDance "violates certain obligations stipulated in the agreement", the US government has the right to close the country.
However, these assurances have not alleviated the concerns of American officials, including the fear that China may use Tik Tok's data to identify intelligence targets, conduct propaganda or participate in other forms of covert influence.
So far, the US government has not publicly submitted any concrete evidence to prove that the China government has obtained the data of Tik Tok; Members of Congress have received confidential briefings from national security officials, but they have not declassified any materials of these meetings.
Reactions to the briefing were mixed. A Republican in the House of Representatives said that "there is no specific information ... this is well-founded evidence", and a Democrat in the House of Representatives said that this issue can be summed up as a judgment requirement to curb China's "malicious influence".
But Senator Mark Warner, a Virginia Democrat who supported Tik Tok's legislation, said in his speech in the Senate in April that these briefings provided key insights into the risks posed by Tik Tok.
Warner said in his speech that "many Americans, especially young Americans, have reason to doubt" the legislation that suppresses Tik Tok. "After all, they didn't see what Congress saw. They did not attend the confidential briefings held by Congress, which explored some threats brought by foreign control of Tik Tok in greater depth. "
In March this year, these concerns reached a climax in legislation, which stipulated that Tik Tok had about six months to sell the product, or it would face a ban from the United States. The bill was passed in the House of Representatives, but stalled in the Senate, and then the updated version of the bill was quickly passed and attached to a major foreign aid program benefiting Israel and Ukraine.
American policymakers describe the disputed law as a forced divestiture of Tik Tok, rather than a complete application of the ban. However, Tik Tok insists that if the law is upheld, the ban will be the only possible outcome.
"The' conditional divestiture' required by the bill to allow Tik Tok to continue to operate in the United States is simply impossible," the petition on Tuesday said. "It is commercially, technically and legally impossible."
The meaning of the first amendment
Tik Tok and ByteDance called the national security concerns at the core of the Tik Tok Act "speculative and analytically flawed", and added in the petition that the rapid passage of the bill reflected how congressional writers relied on "speculation, not the" evidence "required by the First Amendment" to prove their views.
First Amendment scholars say that Tik Tok's ideas have some truth. For example, the Supreme Court held that the US government cannot prohibit Americans from accepting foreign propaganda if they wish. To emphasize this point, the legislation known as the Berman Amendment also prohibits the President of the United States from blocking the free flow of foreign media, even those countries that are considered hostile to the United States.
Evelyn Douek, an assistant law professor who studies online platform regulations at Stanford University, said: "National security claims should not override the First Amendment." "Otherwise, it will make the Constitution a paper tiger. At the very least, the government should be forced to provide evidence for its claims. In other words, there are precedents for the (highest) courts to ignore these principles, especially in the context of counter-terrorism and foreign speech. "
Last year, as several American states tried to ban the app, Tik Tok won some initial victories in court, which indicated that the battle over online speech was coming. Montana is the only state that has passed the Tik Tok ban affecting personal devices, and a federal judge temporarily blocked the legislation-saying that the state law is unconstitutional, "damaging the First Amendment rights (of users) and cutting off the source of income on which many people depend". "
Gautam Hans, deputy director of the First Amendment Clinic at Cornell University, said that the bipartisan nature of the law signed by Biden may convince the court of the seriousness of Tik Tok's national security issues. Nevertheless, Hans said, "Without discussing openly what the risks are ... it is difficult to determine why the court should approve such an unprecedented law."
In addition to the possible violation of the speech rights of users in Tik Tok, the federal laws that Tik Tok is challenging also involve the constitutional rights of Apple and Google. If the ban takes effect, Apple and Google's app stores will be banned from selling Tik Tok.
Jennifer Huddleston, a researcher at the liberal Cato Institute, wrote in a column last month: "This has aroused people's concern that the government may interfere with these platforms' decisions on hosting content unconstitutional." "In addition, this may set a dangerous precedent for the government to intervene in cyberspace, and many people will hate it."
However, the U.S. government and more than half of the U.S. states have restricted Tik Tok from using government equipment, which reflects that the government has the right to manage its own property. Internationally, Tik Tok has been banned by Canada, Britain and the European Commission from being used on government equipment. Since 2020, the application has been completely banned in India.
Since former President Donald Trump banned the app by executive order in 2020, some American officials have been trying to ban Tik Tok in the United States. (Trump later changed his position, saying that the Tik Tok ban would only help Meta, and Trump accused Meta of being the reason for his failure in the 2020 election. )
Duke said that the outcome of the Tik Tok case may have a profound impact on how the US government regulates technology and other foreign remarks.
Duke said: "It is important to consider this issue not only from the perspective of Tik Tok, but also from the perspective of all foreign platforms in the future." "In a globalized world, this problem will appear again and again. If the government is given the power to ban a platform based only on the current concerns about potential harm in the future rather than actual, clear and realistic dangers, it will be extremely worrying. "