TikTok Sues to Overturn US Divestiture Requirement

TikTok asked the U.S. Court of Appeals for the District of Columbia Circuit May 7 to overturn a recently enacted law that will ban the popular social media application in the United States if China’s ByteDance doesn't sell the app to an entity that isn’t controlled by a foreign adversary.

In its 77-page petition, TikTok said the new law is unconstitutional for several reasons, including that it violates the First Amendment’s freedom of speech protection and the Fifth Amendment’s due process protection. TikTok also argues that the law creates an unlawful taking of private property without just compensation, and that it conflicts with a constitutional prohibition on bills of attainder, which punish a specific person, group or entity without a trial.

Although supporters of the law insist it isn't a ban because it allows a divestiture, TikTok insists such a transaction “is simply not possible,” partly because the Chinese government wouldn’t permit it. In addition, the app relies on millions of lines of software code belonging to ByteDance, and setting up a new engineering team to maintain the complex code would take “years,” well beyond the one-year maximum that the law gives to complete a divestiture, TikTok says.

A divestiture also would require separating the U.S. platform from TikTok sites in other countries, which would cut off Americans from international content. “Such a limited pool of content, in turn, would dramatically undermine the value and viability of the U.S. TikTok business,” the petition says. TikTok has more than 1 billion users worldwide, including more than 170 million in the U.S.

While proponents of the law say the Chinese government can use TikTok to spread anti-U.S. propaganda and gain access to U.S. users' personal information, TikTok argues that they failed to show the app poses a threat and instead relied on “the hypothetical possibility that TikTok could be misused in the future.” TikTok also accuses Congress of failing to consider less restrictive alternatives, such as measures to protect U.S. users’ personal information and prevent foreign government influence.

DOJ, whose leader, Attorney General Merrick Garland, is named as the respondent in the petition, declined to comment on the filing.

House Select Committee on China Chairman John Moolenaar, R-Mich., whose predecessor championed the TikTok provisions (see 2403050063), said in a statement that he expects the law to be upheld by the courts. “Congress and the Executive Branch have concluded, based on both publicly available and classified information, that TikTok poses a grave risk to national security and the American people,” he said. “It is telling that TikTok would rather spend its time, money and effort fighting in court than solving the problem by breaking up with the” Chinese Communist Party.

The TikTok law, also known as the Protecting Americans from Foreign Adversary Controlled Applications Act, is included in a wide-ranging national security bill that President Joe Biden signed into law last month (see 2404240043). TikTok said at the time that it would be challenging the law in court.