TikTok Suing the U.S. Government Over "Unconstitutional" Ban

Will TikTok convince the courts to overturn the ban?

By Marc Deschamps

Last month, a ban against TikTok was approved by the United States House of Representatives and Senate before being signed into law by President Joe Biden. The law gives ByteDance 270 days to divest from TikTok, with a possibility of a 90-day extension. Rather than seeking a new owner for the company, ByteDance has filed a petition in federal court seeking to overturn the ban. In the filing, ByteDance calls the ban "unconstitutional," and claims that a divestment like that would simply be impossible; according to the filing, this would result in TikTok ceasing to exist early next year. 

What TikTok is Saying

The original TikTok ban passed by the House of Representatives in March failed to reach the Senate, as there were concerns about the original timeline that had been proposed; that original ban would have only given ByteDance 165 days to sell off the company. It wasn't until the number of days was given an increase that holdouts like Democratic Senator Maria Cantwell of Washington agreed to vote in favor of the ban. However, ByteDance is arguing that even this isn't nearly enough time. 

"The 'qualified divestiture' demanded by the Act to allow TikTok to continue operating in the United States is simply not possible: not commercially, not technologically, not legally. And certainly not on the 270-day timeline required by the Act. Petitioners have repeatedly explained this to the U.S. government, and sponsors of the Act were aware that divestment is not possible. 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," TikTok's petition reads. 

Is the TikTok Ban Unconstitutional?

The petition from ByteDance goes on to state that even if such a thing were possible, it would still be unconstitutional. One of the reasons the U.S. government has opposed TikTok is the company's alleged ties to the Chinese government. Congress has long argued that TikTok could be used to spy on private citizens, an argument that predates Joe Biden's time as the United States President. However, ByteDance is claiming that if the Act were to be upheld, it would give congress the power to "circumvent the First Amendment by invoking national security," stating that this could be used against newspapers and websites, as well. Basically, the argument ByteDance makes is that this power could be widely used as a weapon against any platform that congress claims is a security threat, even if there isn't enough evidence to prove it.

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The lawsuit was filed in the United States Court of Appeals for the District of Columbia Circuit. At this time, it remains to be seen how this will play out, but determining the constitutionality should result in the proposed ban being delayed even further. 

Do you think TikTok has a strong case? How do you feel about the ban? Share your thoughts with me directly on Twitter at @Marcdachamp or on Instagram at @Dachampgaming!

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