Cybersecurity Policy Report, TikTok Seeks to Delay Enforcement of Divest-or-Ban Law, (Dec 9, 2024)
TikTok today asked the U.S. Court of Appeals for the District of Columbia Circuit for a temporary injunction to delay enforcement of a federal law requiring the social media platform to sever its ties with China or face what amounts to a ban on its U.S. operations.
TikTok said it intended to seek Supreme Court review of the appeals court’s Friday ruling that upheld the Protecting Americans from Foreign Adversary Controlled Applications Act (Pub. L. No. 118-50 (Apr. 24, 2024)).
The law gives TikTok’s parent company, Beijing-based ByteDance Ltd., until Jan. 19, 2025, to sell TikTok’s U.S. operations to a “qualified buyer”—one without ties to the Chinese government.
An injunction would give TikTok time to request Supreme Court review of the appeals court ruling and for the Supreme Court to consider the case without the pressure of an imminent deadline, TikTok said in its request.
“Unless this Court grants interim relief, the Supreme Court will be forced to resolve an emergency injunction application on this weighty constitutional question in mere weeks (and over the holidays, no less),” it said.
“Out of respect for the Supreme Court’s vital role, this Court should grant an interim injunction that enables a more deliberate and orderly process,” it added.
A similar request for an injunction was made by a group of TikTok’s U.S. creators who also challenged the Protecting Americans from Foreign Adversary Controlled Applications Act in 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)), which was consolidated with TikTok’s challenge of 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)).
A three-judge panel of the D.C. Circuit decided Friday that the law would not violate the constitutional rights of TikTok and its U.S. users but would prevent the Chinese government from amassing data about TikTok’s U.S. users and exploiting the platform to disseminate Chinese propaganda (CPR, Dec. 6).
In its request for an injunction, TikTok hinted that the incoming Trump administration might further complicate the case by reconsidering whether TikTok should face a U.S. ban. President-elect Trump, despite an earlier attempt to ban the app during his first term as president, has recently expressed support for TikTok, although his legal options for saving the company through executive action appear limited.
Nevertheless, TikTok expressed optimism that Mr. Trump might find a way to keep the social media app operating in the U.S. after his inauguration on Jan. 20, 2025.
“The public interest in avoiding hasty judicial review is particularly strong here because the Act will take effect just one day before the inauguration of a new President,” the company told the court.
“And there is a reasonable possibility that the new Administration will pause enforcement of the Act or otherwise mitigate its most severe potential consequences,” it said. “President-elect Trump has himself publicly announced ‘I’m gonna save TikTok.’”
TikTok also said it was likely that the Supreme Court would agree to hear the case and would reverse the appeals court’s ruling, particularly as it involves First Amendment issues that require review under a “strict scrutiny” legal standard.
“Respectfully,” it told the appeals court, “the Supreme Court is likely to disagree with this Court’s holding that the Act satisfies strict scrutiny—the Constitution’s most demanding standard. After all, when the Supreme Court applies strict scrutiny to speech regulations, it nearly always strikes them down.”
TikTok and the creators argued that they would face irreparable harm if an injunction wasn’t granted before Jan. 19. They asked the court to decide on an injunction by Dec. 16 and said the Department of Justice had agreed to submit its arguments about the injunction by Dec. 11.
DoJ, however, said the court didn’t need new filings to decide that an injunction was inappropriate.
“The government is prepared to provide a full response opposing petitioners’ motions and has agreed to a schedule under which it will file any such response by this Wednesday, December 11. In the unusual circumstances presented here, however, the government believes that it would be appropriate for the Court to deny petitioners’ motions without additional briefing,” according to a letter DoJ filed with the court today.
“The Court is familiar with the relevant facts and law and has definitively rejected petitioners’ constitutional claims in a thorough decision that recognizes the critical national-security interests underlying the Act,” DoJ said.
“The challenged provisions of the Act are scheduled to go into effect less than six weeks from today, and petitioners have indicated that they intend to ask the Supreme Court for relief if this Court denies their motions,” DoJ said.
“An expedient decision by this Court denying petitioners’ motions, without awaiting the government’s response, would be appropriate to maximize the time available for the Supreme Court’s consideration of petitioners’ submissions,” it added.
MainStory: TopStory FederalLegislation DataSecurity LitigationEnforcement