On September 16, 2024, the U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments in the seminal case of TikTok, Inc. v. Garland, which centers around the potential ban of TikTok under the Protecting Americans from Foreign Adversary Controlled Applications Act (the Act). The Act, enacted on April 24, 2024, allows the U.S. government to ban or force the divestiture of applications owned or controlled by foreign adversaries if they are found to compromise sensitive data or unduly influence the public in ways that could harm U.S. interests. Because disputes relating to the Act must be first brought directly to the D.C. Circuit, TikTok and its Chinese-owned parent company, ByteDance, Ltd. filed suit against Merrick Garland, in his capacity as Attorney General of the United States, to challenge the Act’s constitutionality.
THE RISE OF TIKTOK
Social media has indeed become a critical component of modern communication, transforming the way people interact globally. TikTok, which launched in 2016, has grown exponentially, especially among younger demographics. By 2018, TikTok was one of the most downloaded applications in the United States, a testament to its appeal. It also saw a notable surge in popularity during the COVID-19 pandemic, particularly in 2020, when lockdowns and social isolation led to increased social media use. During this period, TikTok’s user base among 15–25-year-olds grew by 180%.
As of January 2024, one-third of U.S. adults reported using TikTok, representing a 12% increase from 2021. This rapid growth underscores the platform’s widespread influence and its significant role in shaping digital communication and content creation, especially among younger consumers.
The app’s widespread popularity has not come without controversy. TikTok has been subject to scrutiny over concerns of its possible ties with the Chinese government. Law makers and other public officials fear TikTok could collect, store and share users’ data, which in turn may be accessed by the Chinese government. Government officials also fear the app could be used to control consumers’ viewing habits, shaping and influencing public sentiment while pushing and/or suppressing certain material.
THE ISSUES
The parties’ arguments revolve around several key questions of law the Court must decide as it relates to the constitutionality of the Act.
Whether the Act Violates the First Amendment
The First Amendment guarantees the freedom of speech and expression without interference from the government. However, in certain instances, the government may control certain speech/expression, so long as its restrictions, after much scrutiny and examination, are deemed reasonable and sufficient under the circumstances.
TikTok contends the Act restricts its free speech of selecting and curating content and communicating to TikTok users itself. According to TikTok, to justify these constraints, Congress must demonstrate a compelling interest that must be protected and that the proposed statute is narrowly tailored, of the least restrictive means, to achieving the interest.
Supporting its position that the Act is not the least restrictive means to address national security concerns, TikTok provided alternatives it states can address the concerns. These include:
- Requiring TikTok to disclose its content-moderation policies much like the European Union does.
- Banning TikTok from making available personally identifiable sensitive data to certain countries and entities.
- Extending the ban of TikTok on government devices to federal employees’ and contractors’ personal devices.
- Executing the National Security Agreement, allowing oversight by government-approved directors and an unprecedented “shut-down option,” in which the U.S. could suspend TikTok and impose significant monetary penalties and other remedies in response to specified acts of noncompliance.
In response, Garland posed serious concerns regarding TikTok, focusing on its ties to ByteDance, a Chinese company. He argues there is a risk that the Chinese government could coerce ByteDance or TikTok into providing access to sensitive and personally identifiable information about U.S. users. This possibility raises significant national security concerns, particularly given Chinese laws that could compel companies to assist in intelligence operations.
Garland also fears that TikTok could be utilized as a tool for Chinese influence operations. This includes the potential for the platform to spread propaganda or manipulate content to sway public opinion, particularly around key political events or democratic processes in the U.S. Such actions could undermine the integrity of American democracy and exacerbate political polarization
According to Garland, the alternatives TikTok proposes do not adequately address the government’s national security concerns. Not only do the government’s concerns relate to current government officials, but to their family members, and even those who may become employed by the government one day, many of which are currently teenagers, many of whom would not be afforded protection by TikTok’s proposals.
Whether the Act is an Unconstitutional Bill of Attainder
A law is an unconstitutional bill of attainder if it (1) applies with specificity, and (2) imposes punishment.
According to TikTok, the Act is unlawful because it names the application and its parent company, ByteDance, specifically. Second, in light of the Act’s broad reach (TikTok and Byte Dance may not operate any application in the United States), the statutory language, and demonstrated congressional intent, the Act serves only to punish TikTok under the various determinative tests.
According to Garland, despite the fact TikTok is mentioned specifically in its language, the Act, as a whole, applies to all foreign adversary controlled applications. Further, the Act is not designed as an unnecessary punishment but is designed to address significant national security concerns.
Whether the Act is an Unconstitutional Taking
Under the Fifth Amendment, the government cannot effectuate the taking of property when it does not serve a public purpose or provide just compensation.
TikTok contends that should it go into effect, the Act constitutes an unlawful taking by nullifying TikTok’s business, thereby de-valuing ByteDance’s investment in TikTok. Therefore, without just compensation, the Act amounts to an unjustified taking.
Garland responded by arguing that the Act does not constitute an unconstitutional taking of TikTok’s assets, as the app has considerable resources, including billions of lines of code, that could be sold. He also emphasized that the Act does not prevent TikTok from continuing to operate; rather, it requires the company to divest from its China-based owner, ByteDance. To Garland, this distinction is crucial because it allows TikTok to maintain its business while addressing national security concerns associated with foreign ownership.
CONCLUSION
In its brief, TikTok references a Joint Motion to Govern Proceedings and requested a ruling by December 6, 2024, given its looming January 19, 2025, divestment deadline under the Act. However, regardless of the outcome, an appeal to the Supreme Court is highly anticipated, signaling that this case could become a landmark decision on the future of free speech for social media platforms and applications with foreign ties
Stay tuned for developments as the case progresses through the courts. To discuss further, please contact KJK attorneys Michael Cantu (MRC@kjk.com) or Nathan Studeny (NFS@kjk.com).