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Attorneys for the United States government on one side and Tiktok + ByteDance, Ltd. (the parent company of TikTok) on the other side, recently appeared in the U.S. Court of Appeals for the District of Columbia Circuit (a final decision has not yet been issued by the court and we will update this blog once it is).

Some background: ByteDance, Ltd. is a Chinese company and the parent company of the U.S. arm of TikTok. The U.S. government has long been concerned about the national security risks that TikTok presents, including the risk that sensitive personal information will be collected and distributed to a foreign adversary (China), that the algorithm may be used to control American users’ viewing preferences and certain content may be promoted or suppressed, which would in turn influence U.S. citizens. In April of 2024, the Protecting Americans from Foreign Adversary Controlled Applications Act was enacted, which would allow the U.S. government to ban or force foreign entities to divest portions of companies operating in the U.S. if there were national security concerns. Based on this law, ByteDance would be required to sell its stake in TikTok or the platform would be forced to shut down in the U.S. by January of 2025.

ByteDance and TikTok have stated that separation of the entities would be impossible, and the result of imposing the law would ultimately mean that TikTok would be banned in the U.S. In May of 2024, ByteDance and TikTok sued the US government, arguing that the law was unconstitutional as it would violate the First Amendment and the right to freedom of speech/expression. The U.S. government may control certain speech, but there must be a compelling reason for it to do so, and the law must be narrowly tailored so as not to limit speech more than absolutely necessary. TikTok’s suit claims that the national security concerns do not rise to a level that would warrant a divesture or ban of the platform.

Both parties were recently in federal court to argue the merits of their respective cases. Additionally, attorneys for a group of creators who are challenging the law were present as well, arguing that it violates the freedom of speech rights of creators, and would be similar to banning U.S. citizens from posting on non-U.S. owned platforms. TikTok has previously stated that the company does not share data on U.S. users with China, and attorneys for TikTok have stated that the U.S. concerns have never been validated. Additionally, TikTok says that there are other measures they can take to address the U.S. government’s concerns, without a divesture or all-out ban of the platform. However, in redacted filings, the Justice Department claims that TikTok has in the past, taken direction from Chinese government about the content on its platform. The U.S. government is concerned that if TikTok has modified its business practices based on orders from the Chinese government, they are susceptible to other influence, including sharing sensitive data of U.S. citizens, or promoting certain content and/or propaganda on behalf of the Chinese government.

Pending a decision by the U.S. Court of Appeals for the District of Columbia Circuit, the divesture or ban deadline is January 19, 2025. Any decision by the U.S. Court of Appeals is likely to be appealed, and this case may eventually make its way to the United States Supreme Court before any final determination is made.

If you have any questions about TikTok, this case and/or how it may affect you, please contact us here.