TikTok and its Chinese owner sue US government over “foreign adversary” law

A TikTok app icon on a phone screen.

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TikTok and its owner ByteDance today sued the federal government to block the “Foreign Adversary Controlled Applications” law that would prohibit TikTok in the US if the company isn’t sold to a non-Chinese firm. The complaint in the US Court of Appeals for the District of Columbia Circuit alleges that the law is unconstitutional and asks for a court order prohibiting enforcement.

TikTok and ByteDance say the law “would allow the government to decide that a company may no longer own and publish the innovative and unique speech platform it created. If Congress can do this, it can circumvent the First Amendment by invoking national security and ordering the publisher of any individual newspaper or website to sell to avoid being shut down.”

The law will “silenc[e] the 170 million Americans who use the platform to communicate in ways that cannot be replicated elsewhere,” TikTok and ByteDance alleged.

“By banning all online platforms and software applications offered by ‘TikTok’ and all ByteDance subsidiaries, Congress has made a law curtailing massive amounts of protected speech,” the lawsuit said. “Unlike broadcast television and radio stations, which require government licenses to operate because they use the public airwaves, the government cannot, consistent with the First Amendment, dictate the ownership of newspapers, websites, online platforms, and other privately created speech forums.”

ByteDance ordered to sell within 270 days

The “Protecting Americans From Foreign Adversary Controlled Applications Act” was approved by Congress and signed into law by President Biden on April 24. The law requires TikTok to be blocked in the US unless ByteDance sells the social network division to an entity that isn’t “controlled by a foreign adversary.”

The law gives ByteDance 270 days to sell TikTok to another entity, but Biden can extend the deadline by up to 90 days if a sale is in progress. If there’s no sale, app stores in the US would have to drop TikTok, and Internet hosting firms would be prohibited from providing services that enable distribution of TikTok in the US.

The same divestiture-or-sale requirement could apply to other applications subsequently designated as being controlled by foreign adversaries, but only TikTok and ByteDance are named in the bill. Law professors who spoke to Ars last month correctly predicted that TikTok and ByteDance would raise objections under the First Amendment, the Fifth Amendment’s Takings Clause, and the prohibition on bills of attainder.

TikTok and ByteDance claim the law violates “the Fifth Amendment’s Due Process Clause because it singles Petitioners out for adverse treatment without any reason for doing so” and “effects an unlawful taking of private property without just compensation, in violation of the Fifth Amendment’s Takings Clause.” TikTok and ByteDance also say the US law “is an unconstitutional bill of attainder” because it singles out the plaintiffs “for legislative punishment.

The US would try to justify the law on national security grounds. US lawmakers have alleged that the Chinese Communist Party can weaponize TikTok to manipulate public opinion and access user data.

The TikTok lawsuit names Attorney General Merrick Garland as the defendant. We contacted the Department of Justice today and will update this article if it provides a comment on the lawsuit.

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