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TikTok sues US to block law that could ban the social media platform

By HALELUYA HADERO, AP Business Writer
Published: May 7, 2024, 10:35am

TikTok and its Chinese parent company ByteDance are suing the U.S. over a law that would ban the popular video-sharing app unless it’s sold to another company, arguing that it relies on vaguely painting it as a threat to national security to get around the First Amendment.

The widely expected lawsuit filed on Tuesday may be setting up what will likely be a protracted legal fight over TikTok’s future in the United States — and could end up before the Supreme Court. If TikTok loses, it says it will be forced to shut down next year.

The popular social video company says that the law, which President Joe Biden signed as part of a larger $95 billion foreign aid package, is so “obviously unconstitutional” that the sponsors of the measure are trying to portray it not as a ban, but as a regulation of TikTok’s ownership. It’s the first time the U.S. government has singled out a social media company with a potential ban, which free speech advocates note is more common in repressive regimes such as Iran or China.

“Congress has taken the unprecedented step of expressly singling out and banning TikTok: a vibrant online forum for protected speech and expression used by 170 million Americans to create, share, and view videos over the Internet,” ByteDance said in its suit, filed in a federal appeals court in Washington D.C. “For the first time in history, Congress has enacted a law that subjects a single, named speech platform to a permanent, nationwide ban, and bars every American from participating in a unique online community with more than 1 billion people worldwide.”

How TikTok grew from a fun app for teens into a potential national security threat

SAN FRANCISCO If it feels like TikTok has been around forever, that's probably because it has, at least if you're measuring via internet time. What's now in question is whether it will be around much longer and, if so, in what form?

Starting in 2017, when the Chinese social video app merged with its competitor Musical.ly, TikTok has grown from a niche teen app into a global trendsetter. While, of course, also emerging as a potential national security threat, according to U.S. officials.

On April 24, President Joe Biden signed legislation requiring TikTok parent ByteDance to sell to a U.S. owner within a year or to shut down. It's not clear whether that law will survive a legal challenge filed by TikTok or that ByteDance would agree to sell.

Here's how TikTok came to this juncture:

  • March 2012

ByteDance is founded in China by entrepreneur Zhang Yimin. Its first hit product is Toutiao, a personalized news aggregator for Chinese users.

  • July 2014

Startup Musical.ly, later known for an eponymous app used to post short lipsyncing music videos, is founded in China by entrepreneur Alex Zhu.

  • July 2015

Musical.ly hits #1 in the Apple App Store, following a design change that made the company's logo visible when users shared their videos.

  • 2016

ByteDance launches Douyin, a video sharing app for Chinese users. Its popularity inspires the company to spin off a version for foreign audiences called TikTok.

  • November 2017

ByteDance acquires Musical.ly for $1 billion. Nine months later, ByteDance merges it with TikTok.

Powered by an algorithm that encourages binge-watching, users begin to share a wide variety of video on the app, including dance moves, kitchen food preparation and various “challenges” to perform, record and post acts that range from serious to satirical.

  • February 2019

Rapper Lil Nas X releases the country-trap song “Old Town Road” on TikTok, where it goes viral and pushes the song to a record 17 weeks in the #1 spot on the Billboard Hot 100 chart. The phenomenon kicks off a wave of TikTok videos from musical artists who suddenly see TikTok as a critical way to reach fans.

TikTok settles federal charges of violating U.S. child-privacy laws and agrees to pay a $5.7 million fine.

  • September 2019

The Washington Post reports that while images of Hong Kong democracy protests and police crackdowns are common on most social media sites, they are strangely absent on TikTok. The same story notes that TikTok posts with the #trump2020 tag received more than 70 million views.

The company insists that TikTok content moderation, conducted in the U.S., is not responsible and says the app is a place for entertainment, not politics.

The Guardian reports on internal documents that reportedly detail how TikTok instructs its moderators to delete or limit the reach of videos touching on topics sensitive to China such as the 1989 Tiananmen Square protests and subsequent massacre, Tibetan independence or the sanctioned religious group Falun Gong.

  • October 2019

U.S. politicians begin to raise alarms about TikTok's influence, calling for a federal investigations of its Musical.ly acquisition and a national security probe into TikTok and other Chinese-owned apps. That investigation begins in November, according to news reports.

  • December 2019

The Pentagon recommends that all U.S. military personnel delete TikTok from all phones, personal and government-issued. Some services ban the app on military owned phones. In January, the Pentagon bans the app from all military phones.

TikTok becomes the second-most downloaded app in the world, according to data from analytics firm SensorTower.

  • May 2020

Privacy groups file a complaint alleging TikTok is still violating U.S. child-protection laws and flouting a 2019 settlement agreement. The company “takes the issue of safely seriously” and continues to improve safeguards, it says.

TikTok hires former Disney executive Kevin Mayer as its chief executive officer in an apparent attempt to improve its U.S. relations. Mayer resigns three months later.

  • July 2020

India bans TikTok and dozens of other Chinese apps in response to a border clash with China.

President Donald Trump says he is considering banning TikTok as retaliation for China's alleged mishandling of the COVID-19 pandemic.

  • August 2020

Trump issues a sweeping but vague executive order banning American companies from any “transaction” with ByteDance and its subsidiaries, including TikTok. Several days later, he issues a second order demanding that ByteDance divest itself of TikTok's U.S. operations within 90 days.

Microsoft confirms it is exploring acquisition of TikTok. The deal never materializes; neither does a similar overture from Oracle and Walmart. TikTok, meanwhile, sues the Trump administration for alleged violation of due process in its executive orders.

November 2020

Joe Biden is elected president. He doesn't offer new policy on TikTok and won't take office until January, but Trump's plans to force a sale of TikTok start to unravel anyway. The Trump administration extends the deadlines it had imposed on ByteDance and TikTok and eventually lets them slide altogether.

  • February 2021

Newly sworn-in President Joe Biden postpones the legal cases involving Trump's plan to ban TikTok, effectively bringing them to a halt.

  • September 2021

TikTok announces it has more than a billion monthly active users.

  • December 2021

A Wall Street Journal report finds TikTok algorithms can flood teens with a torrent of harmful material such as videos recommending extreme dieting, a form of eating disorder.

  • February 2022

TikTok announces new rules to deter the spread of harmful material such as viral hoaxes and promotion of eating disorders.

  • April 2022

“The Unofficial Bridgerton Musical,” a project created by two fans of the Netflix show as a TikTok project, wins the Grammy for Best Musical Theater Album.

TikTok becomes the most downloaded app in the world, beating out Instagram, according to SensorTower data.

June 2022

BuzzFeed reports that China-based ByteDance employees have repeatedly accessed the nonpublic information of TikTok users, based on leaked recordings from more than 80 internal TikTok meetings. TikTok responds with a vague comment touting its commitment to security that doesn't directly address the BuzzFeed report.

TikTok also announces it has migrated its user data to U.S. servers managed by the U.S. tech firm Oracle. But that doesn't prevent fresh alarm among U.S. officials about the risk of Chinese authorities accessing U.S. user data.

  • December 2022

FBI Director Chris Wrap raises national security concerns about TikTok, warning that Chinese officials could manipulate the app's recommendation algorithm for influence operations.

ByteDance also said it fired four employees who accessed data on journalists from Buzzfeed News and The Financial Times while attempting to track down leaks of confidential materials about the company.

  • February 2023

The White House gives federal agencies 30 days to ensure TikTok is deleted from all government-issued mobile devices. Both the FBI and the Federal Communications Commission warn that ByteDance could share TikTok user data with China’s authoritarian government.

  • March 2023

Legislators grill TikTok CEO Shou Zi Chew at a six-hour congressional hearing where Chew, a native of Singapore, attempts to push back on assertions that TikTok and ByteDance are tools of the Chinese government.

  • January 2024

TikTok said it was restricting a tool some researchers use to analyze popular videos on the platform.

  • March 2024

A bill to ban TikTok or force its sale to a U.S. company gathers steam in Congress. TikTok brings dozens of its creators to Washington to tell lawmakers to back off, while emphasizing changes the company has made to protect user data. TikTok also annoys legislators by sending notifications to users urging them to “speak up now” or risk seeing TikTok banned; users then flood congressional offices with calls.

The House of Representatives passes the TikTok ban-or-sell bill.

  • April 2024

The Senate follows suit, sending the bill to President Biden, who signs it.

  • May 2024

TikTok and its Chinese parent company ByteDance sue the U.S. federal government to challenge a law that would force the sale of ByteDance’s stake or face a ban, saying that the law is unconstitutional.

The law requires TikTok’s parent, ByteDance, to sell the platform within nine months. If a sale is already in progress, the company will get another three months to complete the deal. ByteDance has said it “doesn’t have any plan to sell TikTok.” But even if it wanted to divest, the company would have to get a blessing from Beijing. According to the lawsuit, the Chinese government has “made clear” that it would not permit ByteDance to divest the recommendation engine that is “key to the success of TikTok in the United States.”

TikTok and ByteDance argued in the lawsuit that it isn’t being given a choice.

“The ‘qualified divestiture’ demanded by the Act to allow TikTok to continue operating in the United States is simply not possible: not commercially, not technologically, not legally,” they said.

“There is no question: the Act will force a shutdown of TikTok by January 19, 2025,” the lawsuit says.

The lawsuit argues that it would be impossible for ByteDance to divest its U.S. TikTok platform as a separate entity from the rest of TikTok, which has 1 billion users worldwide — most of them outside of the United States. A U.S.-only TikTok, the suit says, would operate as an island that’s detached from the rest of the world.

TikTok also paints divestment as a technological impossibility, since the law requires all of TikTok’s millions of lines of software code to be wrested from ByteDance so that there is no “operational relationship” between the Chinese company and the new U.S. app.

“Specifically, to comply with the law’s divestiture requirement, that code base would have to be moved to a large, alternative team of engineers — a team that does not exist and would have no understanding of the complex code necessary to run the platform,” the lawsuit says.

The parties argued that they should be protected by the First Amendment’s guarantee of freedom of expression. They are seeking a declaratory judgment that the Act violates the U.S. Constitution; an order enjoining Attorney General Merrick Garland from enforcing the Act and any further relief that the court may deem appropriate.

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The Justice Department declined to comment on the suit Tuesday.

ByteDance will first likely ask a court to temporarily block the federal law from going into effect, said Gus Hurwitz, a senior fellow at the University of Pennsylvania’s Carey Law School. And the decision whether to grant such a preliminary injunction could decide the case, he said. In its absence, he said, “ByteDance is going to need to sell TikTok before this case is ever decided.”

Whether a court will grant such an injunction remains unclear to Hurwitz, largely because it requires balancing important freedom-of-speech issues against the Biden administration’s claims of harm to national security. “I think the courts will be very deferential to Congress on these issues,” he said.

The fight over TikTok takes place as U.S.-China relations have shifted to that of intense strategic rivalry, especially in areas such as advanced technologies and data security, seen as essential to each country’s economic prowess and national security.

U.S. lawmakers from both parties, as well as administration and law enforcement officials, have expressed concerns that Chinese authorities could force ByteDance to hand over U.S. user data or sway public opinion by manipulating the algorithm that populates users’ feeds. Some have also pointed to a Rutgers University study that maintains TikTok content was being amplified or underrepresented based on how it aligns with the interests of the Chinese government, which the company disputes.

Opponents of the law argue that Chinese authorities — or any nefarious parties — could easily get information on Americans in other ways, including through commercial data brokers that rent or sell personal information. They note the U.S. government hasn’t provided public evidence that shows TikTok sharing U.S. user information with Chinese authorities, or tinkering with its algorithm for China’s benefit.

Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, expects TikTok’s challenge to the ban to succeed.

“The First Amendment means the government can’t restrict Americans’ access to ideas, information, or media from abroad without a very good reason for it—and no such reason exists here,” Jaffer said in a printed statement.

While TikTok has prevailed in its earlier First Amendment challenges, it is not clear whether the current lawsuit will be as simple.

“The bipartisan nature of this federal law may make judges more likely to defer to a Congressional determination that the company poses a national security risk,” said Gautam Hans, a law professor and associate director of the First Amendment Clinic at Cornell University. “Without public discussion of what exactly the risks are, however, it’s difficult to determine why the courts should validate such an unprecedented law.”

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