TikTok ramps up attacks on Biden administration in challenging prospective ban

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TikTok ramped up its attacks on the Biden administration Thursday over a law that could ban the popular app from the United States, arguing in a court filing that US TikTok users could be forced to live on an “island” of content disconnected from the rest of the world if the platform is forced to find a new owner.

The legal filing also publicizes, for the first time, the text of a draft agreement between TikTok and the US government that the company claims would have addressed national security concerns linked to the app but that was allegedly discarded in favor of legislation that TikTok argues violates the First Amendment.

Thursday’s filing marks TikTok’s opening salvo in a pivotal case that could not only determine the fate of an app used by 170 million Americans but also how courts interpret the First Amendment and its relationship to all online speech. The Justice Department declined to comment.

TikTok has insisted it is not possible for its Chinese parent ByteDance to divest from the app – “not possible technologically, commercially, or legally” – and not by the January 2025 deadline laid out by the law that President Joe Biden signed in April.

“Even if divestiture were feasible, TikTok in the United States would still be reduced to a shell of its former self, stripped of the innovative and expressive technology that tailors content to each user,” the company wrote in its brief. “It also would become an island, preventing Americans from exchanging views with the global TikTok community.”

That is because the law TikTok is challenging prohibits the type of data-sharing agreements that would be necessary to display international TikTok content to US TikTok users, the company claimed in its filing.

That dire warning echoed claims in a related legal brief filed by TikTok content creators Thursday. The group of creators, which includes a football coach, a sexual assault survivor advocate and a US Air Force veteran, argued that the challenged law would prevent them from choosing where and how to express themselves, as well as their First Amendment right to receive others’ speech.

Meanwhile, TikTok’s focus on the draft agreement with the Committee on Foreign Investment in the United States (CFIUS), a multi-agency panel charged with reviewing the national security implications of foreign investment deals, could prove central to the company’s case.

The proposed deal’s existence, TikTok said, is evidence of a lighter-touch option that could have achieved the government’s goals without a potential divestiture or app ban. Whether the Biden administration overlooked a less restrictive alternative could become a factor in a potential test of the law’s constitutionality.

In Thursday’s filing, TikTok said the agreement was never signed despite years of negotiations and dozens of meetings and phone calls with US government officials. And after months of radio silence beginning in September 2022, CFIUS allegedly told TikTok in March 2023 that “‘senior government officials’ demanded divestment without explaining why the Agreement was insufficient.”

TikTok added that it then requested meetings with senior US officials but “received no meaningful responses.”

For years, US officials have warned of the possibility that the Chinese government could gain access to TikTok’s user data through its influence over ByteDance. The Trump administration tried to ban TikTok by executive action, but that was quickly stymied by legal challenges. As Biden signed April’s legislation, Trump reversed himself, saying a ban would only help TikTok’s rival, Meta.

Independent cybersecurity experts say the potential exists based on how China’s laws are written, but that it so far remains a hypothetical and that there are many other sources of sensitive data China can freely obtain, for example by buying it on the open market.

US officials have not publicly presented evidence that China has accessed US users’ TikTok data. But they warn that information could be used to target propaganda or to identify intelligence targets, and they have given members of Congress classified briefings about the app’s potential risks.

TikTok, for its part, has denied ever giving the Chinese government access to its data and has blasted the confidential congressional briefings as part of a flawed, rushed and secretive legislative process.

Attached to the company’s brief on Thursday was an appendix containing the entire 103-page draft agreement.

Outlining what has come to be known as Project Texas, TikTok’s plan for segregating US user data from its global operation, the draft document also shows a provision that would entitle the US government to temporarily stop or even shut down TikTok’s app if TikTok fails to comply with any of a dozen requirements, such as allowing qualified inspectors to review the company’s source code.

On Thursday, TikTok’s filing said the company has so far spent $2 billion voluntarily implementing Project Texas.

Also included with TikTok’s detailed filing was a signed declaration from a third-party expert and former CFIUS official, Christopher Simkins, who said the proposal as written was as robust as any they had seen in two decades of experience. If implemented, Simkins said, TikTok’s national security risks “would be reduced to a LOW level.”