Cybersecurity Policy Report, In Court Filings, DoJ Describes Threat From TikTok, Defends Divestiture Law, (Jul 29, 2024)
A law that requires TikTok’s Beijing-based parent company, ByteDance Ltd., to find a qualified buyer for TikTok—one without ties to ByteDance or China—or face restrictions designed to end TikTok’s ability to operate in the U.S. does not violate the First Amendment because “neither collection of data nor manipulation of an algorithm by a foreign power” constitutes protected speech, according to the Department of Justice.
Likewise, the law doesn’t curtail the free-speech rights of TikTok’s U.S.-based “creators” or users, DoJ said in court filings late Friday defending the constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act (Pub. L. No. 118-50 (Apr. 24, 2024)).
Nothing in the act forbids TikTok’s U.S. users “from engaging in any expressive activity: even if the Act’s prohibitions take effect, they may continue to post and view the same videos on other platforms. Any preference these petitioners may have for using TikTok over those other platforms does not create a constitutional right to TikTok—nor could their preference overcome the national-security interests supporting the Act,” DoJ said.
TikTok, ByteDance, and a group of TikTok’s U.S. users are challenging the law in TikTok, Inc., and ByteDance Ltd. v. Merrick B. Garland in his official capacity as Attorney General of the United States, (appeal docketed, No. 24-1113 (D.C. Cir. May 7, 2024)) and Brian Firebaugh, et al., v. Merrick B. Garland in his official capacity as Attorney General of the United States (appeal docketed, No. 24-1130 (D.C. Cir. May 14, 2024)).
Both lawsuits, which are part of a consolidated docket at the U.S. Court of Appeals for the District of Columbia Circuit, claim the law violates the First Amendment. ByteDance and TikTok additionally claim that it violates the “takings” clause of the Fifth Amendment and represents an unconstitutional “bill of attainder” (CPR, May 7 and 15).
The Protecting Americans from Foreign Adversary Controlled Applications Act gives ByteDance and TikTok a maximum of 360 days to find a suitable buyer for TikTok through a “qualified divestiture.” Absent a qualified divestiture, U.S.-based app stores and providers of web-hosting would face steep fines for supporting TikTok’s U.S. operations (CPR, April 24).
DoJ’s opening brief in the case contains pages and paragraphs that are redacted because, according to the department, they contain classified material that describes the national security risks posed by TikTok and the means by which U.S. officials identified those risks.
DoJ told the court its defense depends on classified information collected under the Foreign Intelligence Surveillance Act and requested permission to file a redacted public brief. An unredacted brief and appendix with declarations from national security officials will be filed under seal for the court to review privately, it said.
Unredacted portions of the declarations indicate some of the reasons U.S. national security officials are concerned about how ByteDance and TikTok collect and exploit U.S. user data.
For example, an internal corporate communications platform called Lark offers “multiple internal search tools that had been developed and run by China-based ByteDance engineers for scraping TikTok user data, including U.S. user data,” according to a declaration by a DoJ official.
“One of those tools allowed ByteDance and TikTok employees in the United States and China to collect bulk user information based on the user’s content or expressions, including views on gun control, abortion, and religion,” it says. The collection of such data indicates the ability of the Chinese government to influence domestic policy debates in the U.S., it says.
In its opening brief, DoJ insists that the law was not enacted to punish TikTok or curtail free speech. “Those harms that the Act aims to ameliorate do not themselves arise from protected First Amendment activity. Obviously, the collection of Americans’ data is not itself expressive activity. And China (a foreign state), as well as ByteDance and TikTok ... have ‘no First Amendment rights,’ much less a First Amendment right to covertly manipulate the information reaching Americans,” it says.
“Under Chinese law, the Chinese government exercises considerable influence and authority over Chinese commercial entities—like TikTok’s parent company ByteDance—that can be used to serve that government’s ends, which are increasingly counter to U.S. national security. And the Chinese government has exhibited a strategy in many contexts of pre-positioning assets for malign uses to provide maximum leverage in critical situations,” it notes.
“TikTok provides the Chinese government the means to undermine U.S. national security in two principal ways: data collection and covert content manipulation,” the brief alleges.
“First, TikTok collects vast amounts of information on its users (and non-users), including sensitive information on millions of Americans. The Chinese government’s authority over ByteDance enables it to gain access to and exploit that information to undermine U.S. national security, including by developing and recruiting intelligence assets, identifying American covert intelligence officers and assets, and blackmailing or coercing Americans,” it says.
“Second, according to the TikTok petitioners ..., TikTok’s platform is unique primarily by virtue of its proprietary recommendation algorithm that determines which videos users receive (based on data that TikTok collects on those users),” it says.
“That algorithm, which is based in China, is vulnerable to covert manipulation by the Chinese government to mold the content that American users receive. Those covert efforts could be deployed as part of a malign influence campaign against the United States—for example, to promote disinformation or to amplify preexisting social divisions,” it asserts.
“Those grave national-security concerns engendered years of engagement among Congress, the Executive Branch, and ByteDance regarding whether the threats posed by the application could be ameliorated,” it recalls.
“That engagement involved a long series of unclassified and classified hearings and briefings, as well as negotiations with the company itself. In the end, Congress determined that a legislative solution was warranted and enacted the Protecting Americans from Foreign Adversary Controlled Applications Act,” it adds.
TikTok released a statement on social media platform X expressing confidence that it would prevail in the case and complaining that DoJ’s opening brief relied on classified information that the company couldn’t access.
“Nothing in this brief changes the fact that the Constitution is on our side. The TikTok ban would silence 170 million Americans’ voices, violating the First Amendment. As we've said before, the government has never put forth proof of its claims, including when Congress passed this unconstitutional law. Today, once again, the government is taking this unprecedented step while hiding behind secret information. We remain confident we will prevail in court,” it said.
Oral argument in the case is set for Sept. 16.
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