TikTok detailed on Thursday why it thinks the new federal law that could lead to a ban of the popular video app in January is unconstitutional, calling the legislation an “extraordinary restriction on speech.”
The company said that Congress did not consider the law — which would force TikTok’s Chinese owner to sell the popular social media app or face a ban in the United States — with nearly enough scrutiny and care.
TikTok made the arguments in a filing to the U.S. Court of Appeals for the District of Columbia Circuit, where the company sued to block the law in May.
“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,” the company said Thursday’s filing.
The company also said that it wasn’t clear that Congress had considered the company’s efforts to reach a compromise with the Biden administration. To support its argument, the company released a trove of documents about numerous confidential meetings and other interactions with top federal officials, nearly all of which have been shrouded in secrecy.
The new documents include a 90-page proposal from TikTok about how it planned to address concerns among American national security officials about the app, including worries that the Chinese government could use it to spread propaganda or collect sensitive user data.
The Biden administration never blessed TikTok’s proposal, known as Project Texas, despite much back and forth about it with the company.
TikTok also released a letter containing the dates and details of several meetings the company held last year with members of a secretive panel known as the Committee on Foreign Investment in the United States, or CFIUS.
The new law was signed by President Biden in April after rapid and overwhelmingly bipartisan support in Congress. It requires TikTok’s parent company, ByteDance, to find a government-approved, non-Chinese buyer by mid-January.
The law could upend the future of an app that claims 170 million users in the United States and that touches virtually every aspect of American life.
TikTok sued the government in May, setting off a fight that many legal experts say will probably end up in the Supreme Court. The government is expected to deliver supporting material for its case by July 26. Oral arguments in the case are scheduled for Sept. 16.
The U.S. government has shared its gravest national security concerns involving TikTok behind closed doors, including classified briefings with members of Congress.
The company has argued that it has offered extraordinary commitments to the U.S. government to address its concerns, including third-party monitoring of TikTok’s content and a “shutdown option” if the company violated terms of a security agreement.
The filing sheds new light on TikTok’s talks with CFIUS, a group of federal agencies that reviews investments by foreign entities in American companies. Those interactions have largely been shrouded in secrecy for the past two years.
Before the law was passed, TikTok was in limbo as the panel weighed whether to approve its security plan.
The documents show that TikTok’s lawyers and the Biden administration went back and forth about the feasibility of a sale and whether the company could move of its underlying coding from China since at least March 2023. A couple of months later, the company said, it gave a presentation at the Treasury Department that noted “that the positions of the U.S. government and the Chinese government were flatly incompatible, putting the company in an impossible position.”
The documents suggest the last in-person meeting between TikTok and CFIUS was in September. It included “another technical discussion” around the challenges of moving underlying coding from China. The company said it had heard little from the administration after that.
TikTok’s lawyers wrote to a Justice Department official after the new law was introduced in March, saying the company feared “CFIUS has become compromised by political demagoguery in this matter.”
The Justice Department said in a statement that it looked forward to defending the legislation, which it said “addresses critical national security concerns in a manner that is consistent with the First Amendment and other constitutional limitations.”
“Alongside others in our intelligence community and in Congress, the Justice Department has consistently warned about the threat of autocratic nations that can weaponize technology — such as the apps and software that run on our phones — to use against us,” the statement said. “This threat is compounded when those autocratic nations require companies under their control to turn over sensitive data to the government in secret.”
