Pai Defends Constitutionality of TikTok Divestiture

Forcing ByteDance to divest TikTok or face a U.S. ban is a legitimate response when facing a national security threat and doesn’t violate free speech rights, former FCC Chairman Ajit Pai and Thomas Feddo, former Committee on Foreign Investment in the U.S. chairman, argued in an amicus brief filed Friday (see 2406280020). President Joe Biden signed the TikTok divestment measure as part of Congress’ foreign aid package in April (see 2404240060). TikTok and ByteDance are challenging the law's constitutionality. The U.S. Court of Appeals for the District of Columbia scheduled oral argument for Sept. 16 (docket 24-1113). The divestiture policies are “nothing new or extraordinary,” Pai and Feddo wrote. Congress has exercised such power frequently in recent years, especially against Chinese telecom companies like Huawei and ZTE, whose threat to U.S. citizens is “endemic," they said: It’s “ludicrous to suggest, as TikTok does, that the U.S. Government cannot prefer divestiture as a policy option, or that it must wait for Americans to be compromised before it can act." The Biden and Trump administrations see TikTok as a national security threat in view of its mass collection of data and its vulnerability to Chinese surveillance, they said. The new law doesn’t discriminate against individual speakers or content on TikTok and doesn’t regulate speech, they said: It “targets ByteDance’s conduct and is based on the government’s longstanding concerns about that conduct. The Act fits comfortably alongside the existing regulatory structures ... that similarly aim to tackle evolving national security risk.”