Concerns about national security could lead the U.S. government to try to ban TikTok in more than one way.
Nonetheless, it is virtually certain that TikTok will dispute a ban in court.
U.S. politicians have increased their demands to ban TikTok, the most popular app in the world, or to compel its China-based parent firm, ByteDance, to sell TikTok’s U.S. operations to an American company, during the past two months.
The federal government and more than half of the states have restricted the use of TikTok on government-owned devices, and prominent Democrats have joined Republicans in calling for a complete ban on the app.
However, the possibility of a ban has been met with bipartisan opposition, primarily from individuals who think that prohibiting a platform used by millions of people to discuss, debate, and express themselves would violate the First Amendment.If Congress or the Biden Administration try to ban TikTok or force it to be sold to a U.S. company, it’s possible that TikTok and ByteDance will go to court to fight the decision, saying that it goes against U.S. law.
However, there is no assurance the government would attempt to outlaw TikTok.
TikTok has been negotiating with CFIUS, the Committee on Foreign Investment in the United States, for more than two years to strike a deal that would lessen the app’s national security threats.
Brooke Oberwetter, a spokesperson for TikTok, issued the following statement in response to a question about the company’s legal strategy for challenging a ban: “We are focused on finalising our national security agreement with CFIUS, continuing to implement Project Texas, and educating the media, civil society, and the public about the robust and comprehensive approach we are taking to address national security concerns.”
(I had policy roles at Facebook and Spotify in a previous life.)
If the negotiations with CFIUS are successful, ByteDance may be able to continue operating TikTok in the United States.
Yet this arrangement might potentially fail if neither the Biden administration nor Congress are satisfied.If the administration reaches an agreement with TikTok that Congress deems insufficient, it may pass legislation requiring the administration to implement a ban.
It is helpful to define what a “ban” would entail.
A regulation mandating Google and Apple to remove TikTok from their app stores (which some politicians and authorities have already demanded) unless a transaction is concluded within a certain time frame may be more plausible than a ban on the app’s use.
If the government agrees to a mitigation contract with the stipulation that ByteDance must divest within a specific number of days if its conditions are violated, this would be a less restrictive alternative but might nonetheless result in a prohibition.
If the government does impose or threaten a ban, it may do so in the following ways, and TikTok could raise legal challenges in response:
Option 1
Joe Biden could ban the app or force its sale if a national emergency was declared.
In 2020, the Trump administration pursued this approach.
The International Emergency Economic Powers Act (IEEPA) grants the President the authority to declare a national security emergency and subsequently regulate (or prohibit) potentially dangerous business transactions with foreign organisations.The legislation is “an incredibly potent instrument that presidents have used, I don’t know how many dozens of times,” according to Joel Richard Paul, professor of constitutional and national security law at UC Law San Francisco.
Both Presidents Trump and Biden have issued executive orders establishing that the foreign ownership of some technology corporations constitutes a national emergency.
President Trump went even farther in 2020, prohibiting U.S. corporations from engaging in certain transactions with TikTok, including the supply of web hosting services and the distribution of the app in app stores.
TikTok successfully sued in response to this executive order, saying that Trump lacked the authority to regulate it through a set of amendments to the IEEPA known as the Berman Amendments.
The Berman Amendments state that “non-commercial” and “informational” speech are exempt from the IEEPA and that the legislation, which is primarily concerned with regulating financial transactions with foreign firms, should not restrict the free speech rights of ordinary citizens.
The majority of frequent TikTok users do not use the app for economic goals; rather, they use it for self-expression.
Yet if President Biden chose to reconsider a prohibition under the IEEPA, he may seek to control another category of TikTok users: its advertisers.
Paul stated that, in general, the Supreme Court has determined that commercial communication, including advertising, is a lower type of expression that is entitled to some protection but not as much as the pure speech of an individual.
The speech of TikTok artists is more protected than that of advertisers.
Also, Congress might request that President Biden prohibit TikTok under the IEEPA.
The ANTI-SOCIAL CCP Act, which is supported by Senators Marco Rubio and Angus King as well as Reps Mike Gallagher and Raja Krishnamoorthi, directs the President to prohibit TikTok by “exercising all authorities available to [him] under the IEEPA.”
The proposed legislation prohibits the application of the Berman Amendments to a TikTok ban.
When asked about the proposed legislation, a spokesperson for TikTok stated that Sen. Rubio “continues to spread deliberate misinformation” about TikTok sharing data with the Chinese government but that “we welcome the opportunity to brief Sens. Rubio and King on the details of our comprehensive plan that would prevent such sharing.”
Option 2: Under CFIUS’s transaction review power, Biden might block the app or require a sale.
In 1988, Congress approved a bill establishing the Committee on Foreign Investment in the United States and authorising the President to prohibit, reverse, or impose limitations on foreign investments if he felt there was convincing evidence that the investment posed a threat to national security.
Section 721 of the Defense Production Act, often known as the Exon-Florio Amendment, states that the president’s “actions and determinations must not be subject to judicial scrutiny.”
“Divestment is not a mythical creature or a condition that never occurs.”
Ama Adams, managing partner at Ropes & Gray Paul, told Forbes that it is “very uncommon” for CFIUS to demand the transfer of a foreign-owned firm to a domestic buyer.
Yet “divestment is neither a mythical creature nor a circumstance that never occurs,” according to Ama Adams, managing partner of the CFIUS practise at Ropes & Gray.
If CFIUS believes there are severe national security risks with the owner or buyer and orders divestiture, then the parties are obligated to complete the divestiture.
In recent CFIUS history, several important cases have focused on Chinese ownership of U.S. assets.
In 2018, the Chinese shipping corporation COSCO purchased a container shipping company that held a strategically significant, huge container port facility in Long Beach, California.
COSCO agreed to sell the terminal to an Australian business in exchange for CFIUS’s approval of the deal.
Given that the scope of Section 721 is confined to situations of foreign acquisition and investment, it is quite unfortunate for ByteDance that TikTok falls under its jurisdiction.
Although ByteDance has developed hundreds of applications on its own (including Douyin, the original Chinese version of TikTok), the company launched TikTok by purchasing and overhauling the adolescent lip-syncing app Musical.ly.
This acquisition provides the Section 721 jurisdictional hook necessary for the President (and CFIUS) to act.
CFIUS initiated an investigation in November 2019 to determine if ByteDance’s acquisition of Musical.ly represented a threat to U.S. national security.
This probe turned into a dialogue in which TikTok exerted considerable effort to prevent Chinese access to the private information of Americans.
Yet, it is uncertain if these attempts will succeed.
Politico reported in December that the Department of Defense and U.S. intelligence agencies opposed TikTok’s suggested mitigation strategy and advocated selling the app to a U.S. firm.
The limited authority of the courts regarding Section 721 actions is a significant obstacle for TikTok.
In 2012, President Obama invoked Executive Order 721 to force the Chinese-owned manufacturing company Ralls to withdraw from a wind turbine development project located within the restricted airspace and bombing zone of the United States Navy.
The corporation filed a lawsuit, claiming the President abused his power by demanding the divestiture.
Judge Amy Berman Jackson, however, disagreed, stating that it is not the responsibility of the courts to second-guess a president’s transaction ban and adding that the clause “give the president exceedingly extensive discretion.”
Yet, the court was not completely constrained.
Although Ralls was unable to challenge the president’s actions, Judge Jackson ruled that it could challenge the fairness of the prior decision-making process.
This allowed Ralls to analyse and refute unclassified government material concerning why the administration thought its investment was dangerous to begin with.
The Ralls case shows an unsettling fact about the CFIUS process: on one side of the discussion is the U.S. government, which is armed with confidential material, and on the other side is a private corporation without such intelligence.
To safeguard intelligence sources, the government is frequently unable to adequately explain its actions, making it difficult to demonstrate that it is operating in good faith.
How TikTok Might React To An Article I Disagree With
Contrary to popular belief, the government can and frequently does limit free speech under the First Amendment.
(There is no porn on daytime television.)Individuals who have been harmed by these restrictions may sue, claiming that their right to free expression has been violated in an unconstitutional manner.
Contemporary constitutional law dictates that limits on communication must be as minimal as necessary to achieve their intended goal.
If the government can address the concerns posed by TikTok without banning it—ffor example, through a negotiated agreement concerning how TikTok can retain and exchange data—tthen it should do so instead of banning the app.
This would be the central argument in TikTok’s legal case.
A Due Process Dispute
TikTok may potentially argue that a forced ban (or sale) violates its right to due process (a privilege that US corporations possess!).
If TikTok can demonstrate that the administration’s decision was arbitrary or that the government neglected to examine less disruptive alternatives, it may prevail on a claim of due process.
If this sounds similar to how a First Amendment claim would be decided, that’s because it is: in both types of cases, courts would have to weigh the government’s national security interests against someone else’s rights (whether that be users’ or advertisers’ rights to speak on TikTok or TikTok’s right to a fair negotiation process with CFIUS).
Perhaps that will provide a clue as to why the entire process has taken so long.
Whether it is defending against challenges of arbitrariness or arguing that its restriction of speech is permissible under the First Amendment, the Biden Administration is likely proceeding with extra caution to demonstrate that its process was fair and thorough and that the outcome was the least restrictive means necessary to protect the American people.
