ByteDance said US government prefers to shut down than work on an ‘effective solution’ to protect US users.

TikTok and Chinese parent ByteDance have urged a United States court to strike down a law they say will ban the popular short video app in the US on January 19 next year.

In details released on Thursday, the two companies said the US government has refused to engage in any serious settlement talks since 2022.

Legislation signed in April by President Joe Biden gives ByteDance until January of next year to divest TikTok’s US assets or face a ban on the app used by 170 million Americans. ByteDance says a divestiture is “not possible technologically, commercially, or legally”.

ByteDance recounted lengthy negotiations between the company and the US government that it says abruptly ended in August 2022. The company also made public a redacted version of a 100-plus page draft national security agreement to protect US TikTok user data and says it has spent more than $2bn on the effort.

The draft agreement included giving the US government a “kill switch” to suspend TikTok there at the government’s sole discretion if the company did not comply with the agreement and the draft says the US demanded that TikTok’s source code be moved out of China.

“This administration has determined that it prefers to try to shut down TikTok in the United States and eliminate a platform of speech for 170 million Americans, rather than continue to work on a practical, feasible, and effective solution to protect US users through an enforceable agreement with the US government,” TikTok lawyers wrote the Justice Department in an April 1 email made public on Thursday.

The Justice Department declined to comment on the email but said last month the law “addresses critical national security concerns in a manner that is consistent with the First Amendment and other constitutional limitations”. It said it would defend the legislation in court.

The US Court of Appeals for the District of Columbia will hold oral arguments on lawsuits filed by TikTok and ByteDance along with TikTok users on September 16. TikTok’s future in the US may rest on the outcome of the case, which could impact how the US government uses its new authority to clamp down on foreign-owned apps.

“This law is a radical departure from this country’s tradition of championing an open Internet, and sets a dangerous precedent allowing the political branches to target a disfavored speech platform and force it to sell or be shut down,” ByteDance and TikTok argued in asking the court to strike down the law.

Driven by worries among US lawmakers that China could access data on Americans or spy on them with the app, the measure was passed overwhelmingly in Congress just weeks after being introduced.

Free speech rights

Lawyers for a group of TikTok users who have filed a lawsuit to prevent the app from being banned said the law would violate their free speech rights. In a filing on Thursday, they argued it is clear there are no imminent national security risks because the law “allows TikTok to continue operating through the rest of this year – including during an election that the very president who signed the bill says is existential for our democracy.”

TikTok says any divestiture or separation – even if technically possible – would take years, and it argues that the law runs afoul of Americans’ free speech rights.

Further, it says the law unfairly singles out TikTok for punitive treatment and “ignores many applications with substantial operations in China that collect large amounts of US user data, as well as the many US companies that develop software and employ engineers in China”.

In 2020, then-President Donald Trump was blocked by the courts in his bid to ban TikTok and Chinese-owned WeChat, a unit of Tencent, in the US.

The White House says it wants to see Chinese-based ownership ended on national security grounds, but not a ban on TikTok. Earlier this month, Trump joined TikTok and has recently raised concerns about a potential ban.

The law prohibits app stores like those of Apple and Alphabet’s Google from offering TikTok. It also bars internet hosting services from supporting TikTok unless it is divested by ByteDance.