TikTok and its China-based parent company ByteDance Ltd. argued that the U.S. government could have enacted less restrictive alternatives to banning the app to address national security concerns.
TikTok’s lawyers said in a court filing Thursday that the company had negotiated a 90-page national security agreement with the federal government to offer “multi-layered safeguards and enforcement mechanisms,” but Congress disregarded that groundwork when enacting the TikTok ban earlier this year.
TikTok and the company’s content creators brought legal challenges last month after President Joe Biden signed a provision into law that will ban the app if ByteDance doesn’t divest it by Jan. 19. U.S. lawmakers rushed to pass the ban following a number of classified briefings around security risks that China could access U.S. user information and use TikTok to influence citizens.
TikTok has said that there is no evidence to validate concerns that the app poses a national security threat.
In its brief, the company said it spent more than a year negotiating an agreement with the U.S. that would have made any risks to national security low. For example, if the government determined that the company violated the agreement, TikTok could face significant financial penalties and would be forced to shut down in the U.S.
But the U.S. government abruptly pulled out of those discussions and delivered a message in early 2023 that the social media platform would be forced to divest its U.S. business, according to the company.
TikTok’s attempts to address concerns by working with Oracle Corp. to protect user information didn’t placate lawmakers. TikTok’s algorithm, source code and back-end support are still in China, according to Senate Intelligence Committee Chairman Mark Warner, who supported a divestment.
The company also laid out its reasons for bringing the lawsuit against Attorney General Merrick Garland. TikTok argued that the ban will infringe on free speech rights and hurt those who earn a living from creating content on the platform.
“The Act is unprecedented,” TikTok said in the court filing. “Never before has Congress expressly singled out and shut down a specific speech forum. Never before has Congress silenced so much speech in a single act.”
In the brief, TikTok said that it is not “possible technologically, commercially or legally” for ByteDance to divest the video-sharing platform.
“Even if the divestiture were feasible, TikTok in the United States would still be reduced to a shell of its former self, stripped of the innovative and expressive technology that tailors content to each user,” the company said.
Justice Department attorneys have until July 26 to respond to TikTok’s arguments. The DC Circuit panel earlier set an expedited schedule after TikTok asked that the case be decided by Dec. 6 so there would be enough time to request an emergency review by the Supreme Court if necessary.
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