A crucial week for TikTok: Court decides on ban of the Chinese app

The continued existence of the widely-used Chinese app TikTok, classified as a national security threat by the Federal Bureau of Investigation, could hinge on an upcoming court hearing in Washington, D.C. Attorneys from the U.S. Department of Justice, TikTok, and a group of platform users will appear in court on Monday to contest a U.S. law that prohibits Chinese ownership of the app. According to TikTok, a subsidiary of the tech giant ByteDance, the law signed by President Biden in April violates the Constitution. The law mandates that ByteDance must relinquish control over TikTok by January 19, or face a nationwide ban. Additionally, any ongoing relationship between TikTok’s U.S. operations and entities under the control of foreign adversaries is prohibited. U.S. lawmakers and security officials are concerned that TikTok collects user data, including location data, IP addresses, device types, and input information. TikTok has asked the court for an injunction against the law, citing the right to free speech under the First Amendment and other grounds. The dispute will be heard by the U.S. Court of Appeals for the District of Columbia, with Chief Judge Sri Srinivasan, Judge Neomi Rao, and Senior Judge Douglas Ginsburg presiding. Attorneys for the U.S. Department of Justice have indicated in a court document that classified information might be involved, which would only be disclosed to the judges. Legal experts doubt that the court will accept TikTok’s argument that the platform’s content constitutes its own or ByteDance’s free speech or that foreign companies should enjoy extensive constitutional protections. According to Jamil Jaffer, Director of the National Security Institute at George Mason University, foreign companies generally do not have constitutional rights. Furthermore, TikTok users who have joined the lawsuit as plaintiffs argue that the law violates their freedom of speech. FBI Director Christopher Wray stated during a Senate hearing in March 2023 that TikTok raises security concerns because Chinese authorities could demand user data according to Chinese law. In the same month, TikTok CEO Shou Zi Chew emphasized to members of Congress that ByteDance is neither owned nor controlled by the Chinese government and is a private company. However, ByteDance admitted in December 2022 that employees had accessed personal data of foreign journalists. In addition to several U.S. states, Canada and the United Kingdom have also banned TikTok on government devices. The case could reach the U.S. Supreme Court due to the novel questions and the significant financial and security risks involved. Some legal experts anticipate that the court might give greater weight to national security concerns, as users still have access to similar platforms like Instagram, Facebook, or X (formerly Twitter). TikTok argues that the forced divestment violates the constitutional prohibition against bills of attainder and ex post facto laws, as well as the Takings Clause and the Equal Protection Clause. The appeals court is expected to make its decision on Monday. The case could potentially reach the U.S. Supreme Court given its high-stakes nature.