Tiktok ban trial begins in the USA
The US government considers TikTok as security risk. In the lawsuit over the impending ban, the Chinese parent company warns of a violation of freedom of speech
(Image: Camilo Concha/Shutterstock.com)
- Andreas Knobloch
- Daniel AJ Sokolov
The trial against the US government over the lifting of the legal ban on TikTok has begun. The federal appeals court with jurisdiction in the first instance heard arguments on Monday. The company is defending itself against a federal law that bans TikTok from mid-January. TikTok's lawyer and its owner Bytedance were confronted with tough questions, as the news agency Reuters writes.
TikTok filed the lawsuit against the US ban in May. The initial aim is to obtain an injunction against the law coming into force. The case is called TikTok et Bytedance v Merrick B. Garland and is pending in the US Court of Appeals for the District of Columbia under case no. 24-1113. A three-judge panel of that court began the hearing by questioning TikTok's outside counsel, Andrew Pincus. He argued that the US government had not proven that TikTok posed a risk to national security. He also argued that the Prohibition Act violates the US Constitution for a number of reasons, including the First Amendment's protection of free speech and the prohibition of eminent domain.
"The law before this court is unprecedented, and its impact would be enormous," Reuters quotes Pincus' statement to the judges. For the first time in history, according to the lawyer, the US Congress has explicitly targeted a specific speaker – meaning the TikTok app – and banned the speech of 170 million Americans who use the app. This is a condemnation by law (Bill of Attainder), which is also expressly prohibited by the US Constitution. The hearing, which was scheduled to last 50 minutes, lasted around two hours, writes the US daily New York Times. Some legal experts assume that the appeals court will make a decision as early as November, the paper continues.
Tiktok as a threat to national security
The law passed overwhelmingly by the US Senate in April gives Bytedance until January 19, 2025 – one day before the end of current US President Joseph Biden's term in office, to sell Tiktok's US assets. If this does not happen, the application will be banned from the app stores and thus effectively prohibited. According to the law, President Biden can extend the deadline by three months if he certifies that Bytedance is making significant progress towards a sale.
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Bytedance is seen across party lines in the US as a Chinese company that must bow to the demands of the Chinese Communist Party. Politicians from both major parties in the USA are therefore warning that Chinese authorities could gain large-scale access to data from users in the USA – and also use the extremely popular application to exert political influence. Tiktok denies this.
Bytedance has stated that a sale is technically, commercially and legally impossible. The short video service's recipe for success is its selection algorithm, without which TikTok would be of little value. The People's Republic of China has already banned the export of the algorithm, so Bytedance cannot sell it at all. The residual value would be reduced to almost zero by the separation of content into "American" and "other" as required by US law. The TikTok parent company is resisting the forced sale and ban and wants to have the law declared unconstitutional. If this is not successful, the app will be closed rather than sold, it says.
Supreme Court decision likely
The trial is taking place in the middle of the US presidential election campaign. Republican presidential candidate Donald Trump and his Democratic rival, Vice President Kamala Harris, are both active on TikTok and are trying to woo younger voters. Many of this target group are critical of a possible TikTok ban. For them, the short video app is an important tool for following political issues.
The White House has stated that it wants to end Chinese ownership of TikTok for national security reasons, but not a ban on the social network. Former President Trump tried unsuccessfully to ban TikTok in 2020 during his first term. He has since changed his published opinion: Most recently, Trump stated that he would not allow Tiktok to be banned if he wins the election in November.
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The referral of the case to the Federal Court of Appeal at first instance is unusual, as federal courts of appeal usually deal with appeals against decisions by federal district courts. However, the challenged statute contains a special provision that requires actions challenging the statute to be brought exclusively in the Court of Appeals for the District of Columbia. This means not only that this court has jurisdiction, but also that there is no ordinary right of appeal against the decision of this Federal Court of Appeal.
The losing party may seek a rehearing before an expanded bench of the same court and/or a trial before the US Supreme Court, but has no legal right to do so. TikTok parent company Bytedance and the US Department of Justice have asked for a decision in the case by December 6. This would allow the US Supreme Court (SCOTUS) to consider a petition for review before the ban comes into force in mid-January.
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