TikTok and ByteDance Officially Sue to Block ‘Obviously Unconstitutional’ Ban — A Divestiture ‘Is Simply Not Possible’

ByteDance and TikTok are officially challenging the Protecting Americans from Foreign Adversary Controlled Applications Act, which they say constitutes an outright ban. Photo Credit: Claudio Schwarz

As expected, ByteDance and TikTok are firing back against the forced-sale law that they’re staring down, arguing against the “facially overbroad” measure in a 70-page action.The short-form video app announced its formal challenge to the Protecting Americans from Foreign Adversary Controlled Applications Act via a concise release today. President Biden signed the quick-moving legislation into law in late April, effectively granting ByteDance nine months (with a possible three-month extension) to divest from or shut down TikTok in the U.S.

From the outset, the app has painted the law as an outright ban, arguing in part that the Chinese government wouldn’t allow a sale and that a divestiture would prove logistically impossible to execute. The mentioned petition, submitted to the D.C. Court of Appeals, elaborates on these arguments, including by reiterating TikTok’s domestic popularity and the “obviously unconstitutional” nature of the law.

“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,” the companies wrote. “And certainly not on the 270-day timeline required by the Act. … There is no question: the Act will force a shutdown of TikTok by January 19, 2025, silencing the 170 million Americans who use the platform”.

Building on that key point, TikTok and ByteDance explored the idea that a divested app, operating independently from the namesake platform on the world stage, would result in a “detached” experience for stateside users and limit content internationally.“A divestment of the U.S. TikTok platform, without any operational relationship with the remainder of the global platform, would preclude the interoperability necessary to make international content seamlessly available in the U.S. market and vice versa,” they penned of the ban.  “As a result, the U.S. TikTok platform would become an ‘island’ where Americans would have an experience detached from the rest of the global platform and its over 1 billion users.”

Additionally, leaving no stone unturned, the filing parties laid out in minute detail the perceived insurmountable logistics associated with a divestiture.

“Specifically, to comply with the law’s divestiture requirement,” they communicated, “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. It would take years for an entirely new set of engineers to gain sufficient familiarity with the source code to perform the ongoing, necessary maintenance and development activities for the platform.”

Furthermore, “even if a ‘qualified divestiture’ were feasible,” the law “would still be an extraordinary and unconstitutional assertion of power” that impedes “innovative and unique speech,” TikTok and ByteDance proceeded.Elsewhere in the all-encompassing action, the petitioners underscored the ostensibly global make-up of ByteDance’s ownership and team – “approximately 58 percent of ByteDance Ltd. is owned by global institutional investors (such as BlackRock, General Atlantic, and Susquehanna International Group).”

Also covered were TikTok data-security efforts such as Project Texas and long-running negotiations with the Committee on Foreign Investment in the United States (CFIUS). Predictably, that President Biden’s campaign (and other politicians and/or their campaigns) still has a TikTok account was mentioned as well in an attempt to demonstrate that the service doesn’t present a threat to Americans.

“This continued use of TikTok by President Biden and Members of Congress undermines the claim that the platform poses an actual threat to Americans,” the petitioners claimed.

Lastly, TikTok and ByteDance drove home their belief that the alleged ban violates the First Amendment – “the government cannot, consistent with the First Amendment, dictate the ownership of newspapers, websites, online platforms, and other privately created speech forums.” Among other things, the companies are seeking an order blocking the enforcement of the law, which could have a far-reaching impact on the music industry.