TikTok sues U.S. government over possible ban

In a federal lawsuit, TikTok says a new legal act giving it 270 days to divest its U.S. operation or face a ban here is unconstitutional.

A provision of a foreign aid bill President Biden recently signed into law requires TikTok’s Chinese owner ByteDance to divest its U.S. TikTok operation in 270 days, or else U.S. app stores and Internet hosting services will not be allowed to support TikTok or any other ByteDance apps.  

In response, TikTok and ByteDance have filed a petition in the U.S. Court of Appeals for the District of Columbia circuit to review the constitutionality of the act. U.S. attorney general Merrick B. Garland is named as respondent in the filing.

According to TikTok’s petition, Congress took the "unprecedented step of expressly singling out and banning TikTok," which it says violates constitutional protections for speech and expression. The petition also alleges that the law’s sponsors recognized its unconstitutionality and have "tried mightily" to say it isn’t a ban but merely a regulation of TikTok’s ownership.

However, according to the petition, the “qualified divestiture” required for TikTok to continue operating in the U.S. is "simply not possible" commercially, technologically or legally, especially within a 270-day timeline. The petition also challenges the constitutionality of the government deciding a company may no longer own and publish a free speech platform.

"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," says the petition. 

The petition also states TikTok and ByteDance have voluntarily invested more than $2 billion to ensure the safety and privacy of U.S. data and made commitments that give the U.S. government authority to suspend TikTok if it violates U.S. data integrity or comes under the influence of a foreign government. The global TikTok business is led by a leadership team based in Singapore and the U.S.

TikTok’s U.S. operation long attracts government attention

TikTok operates an e-commerce store in the U.S., partners with numerous U.S. retailers, and was ranked the second-most-used social platform by American teens by the Pew Research Center. 

However, the Biden administration had been continuing to express serious regulatory concerns, which began under the previous Trump administration. 

Citing possible connections between TikTok parent company ByteDance and the Chinese Communist Party, the Trump administration had been actively attempting to ban TikTok from operating in the U.S. unless it established a separate business with at least partial U.S. ownership.

In December 2022, Sen. Marco Rubio (R-FL) introduced bipartisan legislation to ban TikTok from operating in the U.S. And in May 2023, Montana Gov. Greg Gianforte signed legislation that would make Montana the first state in the U.S. to completely ban any mobile app store from providing TikTok to any users in the state, but it is currently on hold by a federal judge's order. 

Both TikTok and the Chinese government have previously denied any security risks for U.S. users. However, TikTok may already be taking a new look at creating a separate U.S. operation that would include Walmart and Oracle. 

Media reports have also indicated that U.S.-based buyer groups including celebrities such as “Shark Tank” star and venture capital investor Kevin O’Leary and former U.S. Treasury Secretary Steven Mnuchin are considering making offers to acquire TikTok’s U.S. operation.

Interestingly, both Trump and Biden have publicly contradicted themselves in regard to their opposition to TikTok. In a CNBC interview, former President Donald Trump, who pushed TikTok to divest its U.S. business during his presidential term, said a U.S. TikTok ban would serve to make Facebook parent Meta bigger and called Facebook an “enemy of the people.”

And although Biden signed the bill requiring ByteDance to divest TikTok in the U.S. or face a ban, his presidential campaign operates a TikTok account promoting his candidacy.