Appeals Court Upholds Law Requiring TikTok Ban or Sale Law

Appeals Court Upholds Law Requiring TikTok Ban or Sale Law

The U.S. Court of Appeals for the District of Columbia Circuit upheld a law that requires the sale or ban of TikTok in America.

President Donald Trump threatened to ban the popular social media app owned by China-based company ByteDance.

President Joe Biden signed the Protecting Americans from Foreign Adversary Controlled Applications Act, naming TikTok and ByteDance. The act “made it functionally illegal for ‘a foreign adversary controlled application’ to operate within the United States, or for any other entity to provide ‘internet hosting services to enable the distribution, maintenance, or updating’ of the app.”

The law targets all companies where “a citizen of an adversarial nation ‘directly or indirectly own[s] at least a 20 percent stake.'”

The appeals court narrowed it down to national security:

We conclude the Act implicates the First Amendment and is subject to heightened scrutiny. Whether strict or intermediate scrutiny applies is a closer question. The relevant portions of the Act are facially content neutral, but the Government arguably based its content manipulation justification for the Act upon the content on the platform. We think it only prudent, therefore, to assume without deciding that the higher standard applies.

The three-judge panel concluded that strict scrutiny is appropriate because the Act is facially content-neutral since it does not target the speech in the app.

“The TikTok-specific provisions instead straightforwardly require only that TikTok divest its platform as a precondition to operating in the United States,” wrote Senior Judge Douglas Ginsburg. “On its face, the Act concerns control by a foreign adversary and not ‘the topic discussed or the idea or message expressed.'”

The government’s concerns are:

• (1) to counter the PRC’s [People’s Republic of China] efforts to collect great quantities of data about tens of millions of Americans, and
• (2) to limit the PRC’s ability to manipulate content covertly on the TikTok platform. The former does not reference the content of speech or reflect disagreement with an idea or message.

The government claimed (emphasis mine) that “the PRC might shape the content that American users receive, interfere with our political discourse, and promote content based upon its alignment with the PRC’s interests.”

Another one (again, emphasis mine): “In fact, the Government identifies a particular topic — Taiwan’s relationship to the PRC — as a ‘significant potential flashpoint’ that may be a subject of the PRC’s influence operations, and its declarants identify other topics of importance to the PRC.”

Might. May be. So, the government hasn’t actually introduced evidence that TikTok and the PRC have done anything remotely to spark those national security concerns.

Here’s more (emphasis mine):

Indeed, content on the platform could in principle remain unchanged after divestiture, and people in the United States would remain free to read and share as much PRC propaganda (or any other content) as they desire on TikTok or any other platform of their choosing. What the Act targets is the PRC’s ability to manipulate that content covertly.

The panel said the government provided “persuasive support for its concerns regarding” national security, which includes stealing data from those in America.

It turns out the case of China Telecom (Am’s.) Corp. v. Fed. Commc’ns Comm’n in 2022 allows the government to take action before anything happens.

The government can do something “based on informed judgments.” The panel wrote:

Here the Government has drawn reasonable inferences based upon the evidence it has. That evidence includes attempts by the PRC to collect data on U.S. persons by leveraging Chinese-company investments and partnerships with U.S. organizations. It also includes the recent disclosure by former TikTok employees that TikTok employees “share U.S. user data on PRC-based internal communications systems that China-based ByteDance employees can access,” and that the ByteDance subsidiary responsible for operating the platform in the United States “approved sending U.S. data to China several times.” In short, the Government’s concerns are well founded, not speculative.

“In this case, a foreign government threatens to distort free speech on an important medium of communication,” added the panel. “Using its hybrid commercial strategy, the PRC has positioned itself to manipulate public discourse on TikTok in order to serve its own ends.”

The judges ordered TikTo to execute “a qualified divestiture by January 19, 2025.”

“Consequently, TikTok’s millions of users will need to find alternative media of communication,” the judges concluded. “That burden is attributable to the PRC’s hybrid commercial threat to U.S. national security, not to the U.S. Government, which engaged with TikTok through a multi-year process in an effort to find an alternative solution.”

The case will likely go to the Supreme Court. TikTok expects the court to throw out the law because the government passed it using “inaccurate, flawed, and hypothetical information.”

I don’t like slippery slopes.

How about this? Don’t download the app. Don’t use TikTok. Keep an eye on your child’s electronics.

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