Next week, a court will hear arguments about whether the US government can ban TikTok, based on evidence it doesn’t want anyone — including the social media company — to see.
On September 16th, the Court of Appeals for the District of Columbia will hear oral arguments for TikTok v. Garland, TikTok’s First Amendment challenge to legislation that it claims amounts to a ban. It’s a fight not just about free speech but whether the Department of Justice can make a case using classified material that its opponent can’t review or argue against. The government argues TikTok is a clear national security threat but says that revealing why would be a threat, too.
“I think the courts are going to tread very carefully here,” Matt Schettenhelm, a senior litigation analyst at Bloomberg Intelligence covering tech and telecom, told The Verge. “Especially in a First Amendment case like this, where it’s effectively banning one of our leading platforms for free speech in the country, the idea that you’re going to do it for secret reasons that you don’t even tell the company itself, that is going to be cause for concern for the judges.”
The DOJ’s case against TikTok
TikTok’s suit stems from a law signed by President Joe Biden back in April. The law requires TikTok’s parent company, ByteDance, to divest it within nine months to a non-Chinese company; if it fails, the app would be effectively banned in the US — unless the president grants it a few months to get a deal done. TikTok has argued the law would unconstitutionally “force a shutdown,” accusing the government of taking “the unprecedented step of expressly singling out and banning TikTok.”
In filings first submitted on July 28th, the government laid out its defense, making a series of declarations about TikTok’s risks. The claims relied on dozens of pages of redacted classified material. The DOJ insisted it wasn’t “trying to litigate in secret,” but, citing national security concerns, it asked to file the classified material ex parte, meaning only one side (and the panel of judges) would be able to see it.
We obviously don’t know exactly what’s in these documents, but the partially redacted filings give us some hints. They focus largely on the potential that the Chinese government could compel ByteDance to hand over the data of US users — or that it could coerce the company into using TikTok’s algorithm to push specific content onto US users.
The government argues that the national security risks posed by TikTok are so significant that they override First Amendment claims. The DOJ said Congress decided to ban TikTok based on “extensive information — including substantial classified information — on the national-security risk” of allowing TikTok to remain operational in the US.
One of the documents is a declaration from Casey Blackburn, an assistant director of national intelligence. Blackburn writes that there is “no information” that the Chinese government has used TikTok for “malign foreign influence targeting US persons” or the “collection of sensitive data of US persons.” But he says there is “a risk” of it happening in the future.
Another declaration comes from Kevin Vorndran, an assistant director of the FBI’s counterintelligence division. Vorndran details the possibility that TikTok may be a “hybrid commercial threat”: a business whose legitimate activity serves as a backdoor through which foreign governments can access US data, infrastructure, and technologies. He states that the Chinese government uses “prepositioning tactics” as part of a “broader geopolitical and long-term strategy to undermine US national security.” These efforts, the government claims, “span several years of planning and implementation.”
In other words, the government is arguing that even if China hasn’t yet surveilled TikTok’s US users, it could. It takes particular issue with TikTok’s ability to access users’ contacts, location, and other data that it says could potentially let the Chinese government track Americans. The DOJ notes that researchers can easily identify individuals using anonymized data bundles, making “anonymized” data anything but.
The filings argue that TikTok’s recommendation algorithm could also be used to influence US users. TikTok’s “heating” feature lets employees “manually boost certain content,” potentially at the direction of the Chinese government. Lawmakers from both parties have accused TikTok of promoting content critical of Israel. In a private meeting with the group No Labels, Rep. Mike Lawler (R-NY) suggested that college campus protests over the Israel-Hamas war were proof that students are being “manipulated by certain groups or entities or countries.” And Rep. Raja Krishnamoorthi (D-IL), the ranking member of the House Select Committee on the Chinese Communist Party, told The New York Times in April that the Israel-Hamas war was a factor in the eagerness of legislators to regulate TikTok.
The hardest evidence for any of this isn’t public, though. Blackburn’s declaration includes an eight-page section titled “ByteDance and TikTok’s History of Censorship and Content Manipulation at PRC Direction,” for instance, but it’s almost entirely redacted.
January 4th, 2021: TikTok sends the executive branch an updated mitigation proposal, renewing negotiations to resolve the government’s national security concerns August 23rd, 2022: TikTok submits a final proposed national security agreement to the executive branch September 3rd, 2022: ByteDance executives meet with the Departments of Justice and the Treasury to discuss TikTok’s source code and potential remedies to national security concerns September 27th, 2022: DOJ representatives discuss TikTok’s source code with ByteDance counsel and technical experts October 14th, 2022: DOJ and Treasury representatives correspond with ByteDance regarding the executive branch’s review of the final proposed national security agreement November 28th, 2022: ByteDance requests a meeting with the executive branch. Treasury Department representatives respond four days later, saying the government is still reviewing the proposed agreement January 9th, 2023: Executive branch representatives email ByteDance questions about recent news concerning TikTok February 1st, 2023: ByteDance submits responses to the executive branch’s questions February 10th, 2023: ByteDance submits second tranche of responses to US government questions March 6th, 2023: Executive branch representatives tell ByteDance and TikTok US that the final proposed national security agreement does not sufficiently address national security risks
The DOJ filings also reveal — and simultaneously obscure — the lengthy, extensive negotiations that preceded the ban. ByteDance and TikTok executives met with representatives from several agencies starting in August 2022, discussing ways to address security concerns without divestment. By March 2023, the government believed divestment was the only option. And in February 2024, Congress began holding briefings about its potential threats.
February 15th, 2024: House Homeland Committee briefing March 7th, 2024: House Energy and Commerce full committee markup hearing March 12th, 2024: House of Representatives all-member classified briefing March 20th, 2024: Senate Select Committee on Intelligence and Senate Commerce, Science, and Technology Committee classified briefing
During these hearings, lawmakers discussed the threats China poses to US national security, formal and informal methods of control the Chinese government exerts over companies that do business there, and the specifics of China’s control over ByteDance.
But the briefing transcripts are largely redacted — including one section discussing an additional unknown issue. “We never see what the lawmakers actually decided, or what actually drove their decision,” Schettenhelm said. “There’s sort of a missing piece here: how much did the lawmakers consider this a true threat, and why did they need to take this extreme step as opposed to less drastic measures?”
TikTok fights back
TikTok contends that the government’s defense is full of errors, including what it calls “false assertions” about what data it stores and where. It says it does not store users’ precise locations and claims information from users’ contact lists “is automatically anonymized” and “cannot be used to recover the original contact information” of people who aren’t on TikTok. TikTok says that contrary to claims its anonymized data isn’t anonymous, the proposed agreement required anonymization tools “often used by the US government to protect sensitive data.”
The company also denies that the Chinese government can access the data of American users or influence its algorithm. It says US user data and TikTok’s “US recommendation engine” are stored in the United States with Oracle, thanks to a $1.5 billion siloing effort dubbed Project Texas. But reports have suggested TikTok employees in the US continued to report to ByteDance executives in Beijing after the plan’s implementation, and one former employee described the effort as “largely cosmetic.”
Still, TikTok argues the government’s claims about its operations are largely false. TikTok says that the government ignored its extensive, detailed plan to address national security concerns — and that the information the DOJ has provided fails to prove why a ban was necessary.
Schettenhelm, the Bloomberg Intelligence legal expert, said Congress’ decision to single out a single company is unique. TikTok argues it’s also unlawful. The Constitution prohibits what are known as “bill of attainder laws,” which single out an individual or company without due process. The bill bans social media websites and apps controlled by “foreign adversaries” that meet certain criteria — including having more than 1 million monthly active users and letting users generate content — but TikTok is the only company it mentions by name. The court will have to decide who’s right.
The government “never really explains why TikTok is subject to that different process, and I think when you do something so unique like that, especially when the First Amendment is implicated, I think the courts are going to want to see more of a justification,” Schettenhelm said.
TikTok’s uncertain future
A decision will likely come in December, where the court could either uphold the law’s constitutionality or block it from going into effect. But it won’t necessarily put an end to the legal saga. If the court rules in favor of the government and upholds the law, TikTok has multiple avenues through which it could appeal, Schettenhelm told The Verge. It could ask for an en banc decision in which all the judges in the DC Circuit Court examine the decision. TikTok could also appeal the case and ask the Supreme Court to overturn the decision.
But Schettenhelm predicts that the court could block the law from taking effect because it’s unable to determine whether it’s constitutional. “I think that potentially could have the effect of throwing it back to Congress, and Congress could go ahead at taking another shot,” Schettenhelm said. “Congress would have to pass a second law, and the president would have to sign it.”
Given that the initial bill passed with an overwhelming bipartisan consensus, a subsequent bill could pass easily. But the outcome of the election could determine whether the law goes into effect. Former President Donald Trump — who previously attempted to ban TikTok — said in March that he now opposes efforts to ban the app.
If the court rules against TikTok, the clock will keep ticking toward its divestment date — when one of the biggest social media platforms in the country could disappear.
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