TikTok at Risk of Ban as Appeals Court Confirms Divestment Law
TikTok has stated that the Chinese government will not permit its sale.
TikTok now faces a potential ban on January 19, 2025, unless President Joe Biden approves a 90-day extension, as the company has contended that the Chinese government will not allow its sale to a foreign entity. This situation arises from the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA), signed by Biden in April, which prohibits foreign-owned apps deemed adversarial from operating within U.S. borders.
The appeal was heard before Chief Judge Sri Srinivasan, Circuit Judge Neomi Rao, and Senior Circuit Judge Douglas Ginsburg of the U.S. Court of Appeals for the District of Columbia Circuit.
Petitioners claimed the law was unconstitutional, infringing upon users’ First Amendment rights to free speech.
The government maintained that the law targets ownership rather than content, grounded in national security concerns.
“The Act meets rigorous scrutiny,” the opinion, authored by Ginsburg, states. “We emphasize at the outset that our conclusion is based on the facts presented.”
“The extensive multi-year efforts by both political branches to assess the national security risks associated with the TikTok platform, as well as consider proposed remedies from TikTok, weigh heavily in favor of the Act.”
National Security Threat
The judges were convinced that the Chinese Communist Party represented a national security danger, citing prominent cases of cyberattacks and espionage supported by the state.
Lawmakers in Washington were not satisfied with TikTok’s final proposal, submitted in August 2022, which did not adequately address their security concerns. In response, they put forth legislation requiring ByteDance to divest TikTok.
The panel also dismissed TikTok’s argument that it had been unjustly singled out, asserting that data collection was not the real issue for the government.
The judges remarked that the petitioners did not “identify any comparable company operating in the U.S. with similar ties to the PRC,” concluding that the extensive efforts of both executive and legislative branches to collaborate with TikTok indicated a legitimate “pressing concern.”
PRC is the official designation for communist China, the People’s Republic of China.
A federal court had already upheld PAFACA, determining it did not breach the First Amendment.
Judges Assert CCP May Violate Users’ First Amendment Rights
The judges ruled that potential manipulation of content by the Chinese regime could impact the First Amendment rights of Americans.
“In this case, a foreign government poses a threat to distort free speech on a crucial communication platform,” the opinion states. “Through its hybrid commercial strategies, the PRC has positioned itself to alter public discourse on TikTok to serve its own interests. The PRC’s capacity to do so undermines the foundation of free speech.”
The judges clarified that the law does not seek to influence TikTok’s content, but rather to prevent foreign adversaries from impacting it. PAFACA does not regulate content and would permit TikTok to host the same material under new ownership.
TikTok contended that the government failed to demonstrate that the Chinese regime manipulated content on its app. The government provided fragmented evidence of content manipulation, acknowledging it did not indicate a specific source, alongside proofs of the CCP’s influence campaigns abroad. The judges noted that TikTok has never denied claims of content manipulation at the behest of the Chinese regime.
“Interestingly, TikTok has not directly contested that it has ever altered content on the platform at the PRC’s direction,” the opinion states. “This silence is noteworthy.”
The government has a track record of imposing similar restrictions due to national security concerns, the judges pointed out, referring to other laws limiting foreign control over communication licenses.
Lawmakers React
Rep. Raja Krishnamoorthi (D-Ill.), ranking member of the House Select Committee on the CCP and co-author of PAFACA, deemed the ruling a significant victory for national security.
“With today’s decision, all three branches of government have aligned on this conclusion: ByteDance is under the control of the Chinese Communist Party, and TikTok’s ownership by ByteDance constitutes a national security risk that can only be addressed through divestiture,” he stated.
“Every day that TikTok remains under the control of the Chinese Communist Party is a day our security is compromised.”
Rep. John Moolenaar (R-Mich), Chair of the House Select Committee on the CCP, remarked that divestiture would eliminate the CCP’s capacity to “exploit ByteDance’s control over TikTok to undermine our sovereignty, surveil our citizens, and endanger our national security.”
Moolenaar expressed optimism that President-elect Donald Trump would facilitate TikTok’s sale to an American company.
“I am hopeful that President Trump will enable an American acquisition of TikTok, allowing its continued operation in the U.S., and I eagerly anticipate welcoming the app with new ownership,” he said.
During his campaign, Trump highlighted national security apprehensions regarding TikTok, stating he could orchestrate the app’s sale. He indicated he was opposed to an outright ban, as the app’s removal could lead to monopolistic control by social media giants like Meta.
