On Tuesday, lawyers for ByteDance filed the complaint in the US Court of Appeals in Washington, DC, arguing the law was “obviously unconstitutional”.
President Joe Biden signed the law less than two weeks ago, on April 24, as part of a package that included foreign aid to Ukraine and Israel, as well as humanitarian relief for Gaza.
Under the law, ByteDance has nine months to sell off its US-based operations. Its deadline is January 19, with an additional three-month extension possible should a sale be in progress.
But in its suit, ByteDance argues divestment will not be possible within the timeframe allotted — “not commercially, not technologically, not legally”.
It also argues it is being unfairly targeted by a law that violates the First Amendment of the US Constitution, which protects free speech.
“For the first time in history, Congress has enacted a law that subjects a single, named speech platform to a permanent, nationwide ban, and bars every American from participating in a unique online community with more than 1 billion people worldwide,” the lawsuit reads.
While ByteDance maintained it has no plans to sell TikTok, its popular video-sharing app, it said that doing so would not even be feasible under the law.
Millions of lines of code would have to shift hands, the lawsuit explained, and any prospective owners would have to access ByteDance’s algorithms to keep it operational — something that would also be barred under the law.
“There is no question: the Act will force a shutdown of TikTok by January 19, 2025, silencing the 170 million Americans who use the platform to communicate in ways that cannot be replicated elsewhere,” the lawsuit said.
TikTok has been a target of bipartisan criticism in the US, with politicians concerned about its national security implications.
ByteDance is a Chinese technology company, and its critics fear that the Chinese government could request the information it collects from users, raising privacy concerns.
US Congress members like Representative Raja Krishnamoorthi said the April law is therefore necessary to protect US users.
“This is the only way to address the national security threat posed by ByteDance’s ownership of apps like TikTok,” he said in a statement on Tuesday. “Instead of continuing its deceptive tactics, it’s time for ByteDance to start the divestment process.”
ByteDance has long denied furnishing any information about US users to the Chinese government, and it has publicly pledged not to do so, brushing aside such concerns as “speculative”.
The lawsuit also notes that the company spent $2bn to protect US user data and has made commitments under a 90-page draft “National Security Agreement” with the US government.
TikTok has been in the US government’s crosshairs for nearly four years, as tensions continue between Washington and Beijing.
In 2020, for instance, former President Donald Trump signed an executive order to ban the video platform, citing national security concerns.
But federal judges blocked the ban, saying that officials demonstrated a “failure to consider an obvious and reasonable alternative before banning TikTok”.
States have similarly sought to block the app, most notably Montana. In April 2023, Governor Greg Gianforte signed a first-of-its-kind bill, SB 419, that would fine TikTok for operating within state lines, as well as any app stores that carried it.
But it was unclear how Montana planned to enforce the law, which was quickly challenged in court.
Montana’s SB 419 was scheduled to take effect on January 1, but a federal judge ultimately blocked it, awarding another win to ByteDance. The state’s attorney general has promised an appeal.
Many free-speech advocates predict a similar fate awaits April’s federal law forcing ByteDance to sever itself from its US operations.
Jameel Jaffer, the executive director of the Knight First Amendment Institute at Columbia University, told the Associated Press that he anticipated ByteDance would prevail in Tuesday’s lawsuit.
“The First Amendment means the government can’t restrict Americans’ access to ideas, information, or media from abroad without a very good reason for it — and no such reason exists here,” Jaffer said in a statement.
For its part, China has taken similar actions against US-based companies like Meta, whose WhatsApp and Threads platforms were recently ordered to be removed from Chinese-based app stores over questions of national security.