TikTok’s Lawsuit Challenging Potential US Ban ‘Very Much a Landmark Case,’ Expert Says

TND - May 10, 2024 5:49 am

There are “absolutely huge” legal implications in TikTok’s lawsuit seeking to stop a new law that could result in the social media platform’s U.S. ban, an expert said Wednesday.

TikTok and Chinese parent company ByteDance filed a federal lawsuit Tuesday, asking that the court find the law unconstitutional and prevent its enforcement.

Timothy Edgar, a professor of the practice of computer science at Brown University and a Harvard Law lecturer, said this is “very much a landmark case.”

“This is about whether the government can essentially erect a digital wall around the United States and say other countries, countries that we have strong national security problems with, can’t play in our sandbox,” he said.

It’s likely to be a very close call in the courts, he said.

And it seems inevitable that whichever side loses in the lower courts will appeal to the Supreme Court.

The law that TikTok is challenging was included in a larger foreign aid package President Joe Biden signed April 24.

ByteDance has nine months to sell TikTok to a U.S.-approved buyer to avoid a ban under the new law.

U.S. lawmakers have raised concerns over data security and privacy for TikTok users, as well as suspicions of Chinese government influence over TikTok’s content.

“If Congress can do this, it can circumvent the First Amendment by invoking national security and ordering the publisher of any individual newspaper or website to sell to avoid being shut down,” reads a portion of TikTok’s suit.

Edgar said that argument is essentially right.

“The question is whether there’s a compelling (national security) interest and whether this is the … least restrictive means of achieving that interest,” he said. “That’s basically the strict scrutiny test under the First Amendment.”

The question will be whether the court defers to the government’s views on that question, Edgar said.

Rep. John Moolenaar, the chair of the House Select Committee on the Chinese Communist Party, reiterated there are national security concerns with TikTok’s Chinese ownership in a statement Tuesday.

“Congress and the Executive Branch have concluded, based on both publicly available and classified information, that TikTok poses a grave risk to national security and the American people,” Moolenaar said. “It is telling that TikTok would rather spend its time, money, and effort fighting in court than solving the problem by breaking up with the CCP. I’m confident that our legislation will be upheld.”

Edgar said TikTok’s best shot at winning in court might be to argue that a full-on ban is an excessive way to deal with the government’s concerns.

For example, TikTok said in its lawsuit that it has voluntarily invested more than $2 billion in “Project Texas,” which the company says includes third-party oversight and secures American user data and keeps it free from outside influence.

TikTok CEO Shou Zi Chew told U.S. lawmakers last year that they’ve built a “firewall” around U.S. user data.

Edgar said that part of TikTok’s complaint was pretty persuasive.

“Why can’t these interests be dealt with through something short of a ban?” Edgar said.

FILE - The TikTok logo is displayed on a smartphone screen, Sept. 28, 2020, in Tokyo, Japan. (AP Photo/Kiichiro Sato, File)

FILE – The TikTok logo is displayed on a smartphone screen, Sept. 28, 2020, in Tokyo, Japan. (AP Photo/Kiichiro Sato, File)

Edgar said a lawsuit was a foregone conclusion once the law was signed a couple of weeks ago.

And he said this might just be the “first shot across the bow.” TikTok content creators or other interested parties might also seek legal action.

“You’re talking about a platform with 170 million U.S. users, thousands of U.S. employees who work for TikTok Inc., which is the American subsidiary. Yes, of course, they’re going to try to stop Congress from putting in place these kinds of restrictions,” he said. “This ban, essentially, if they’re not able to divest their ownership.”

 

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