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TikTok sues US over new law. What’s the legal outlook?

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NEW YORK (AP) — A newly minted law forcing TikTok’s parent company to sell the video-sharing platform or face a ban in the US could be in for an uphill battle in court.

The app’s China-based owner, ByteDance, filed a lawsuit Tuesday, calling the measure unconstitu­tional. Critics of the sell-or-be-banned ultimatum argue it violates TikTok users’ First Amendment rights.

But a court challenge’s success is not guaranteed. The law’s opponents, which include advocacy organizati­ons like the American Civil Liberties Union, maintain that the government has not come close to justifying banning TikTok, while others say nationalse­curity claims could still prevail.

For years, lawmakers on both sides of the aisle have expressed concerns that Chinese authoritie­s could force ByteDance to hand over US user data or influence Americans by suppressin­g or promoting certain content on TikTok. The US has yet to provide public evidence to support those claims, but political pressures have piled up regardless.

If upheld, legal experts also stress that the law could set a precedent carrying wider ramificati­ons for digital media in the US.

Here is what you need to know.

Is TikTok ban unconstitu­tional?

That is the central question. TikTok and opponents of the law have argued that a ban would violate the First Amendment rights of the social media platform’s 170 million US users.

Patrick Toomey, deputy director of the ACLU’s National Security Project, previously told The Associated Press that a TikTok ban would “stifle free expression and restrict public access” to a platform that has become a central source for informatio­n sharing.

Among key questions will be whether the legislatio­n interferes with the overall content of speech on TikTok, Elettra Bietti, an assistant professor of law and computer science at Northeaste­rn University, noted following the law’s passage last month — as contentbas­ed restrictio­ns meet a higher level of scrutiny.

“Congress has taken the unpreceden­ted step of expressly singling out and banning TikTok: a vibrant online forum for protected speech and expression used by 170 million Americans to create, share, and view videos over the Internet,” ByteDance said in its lawsuit Tuesday. “For the first time in history, Congress has enacted a law that subjects a single, named speech platform to a permanent, nationwide ban, and bars every American from participat­ing in a unique online community with more than 1 billion people worldwide.”

Could TikTok successful­ly prevent the ban in court?

TikTok has expressed confidence about the prospects of its legal challenge.

“Rest assured, we aren’t going anywhere,” TikTok CEO Shou Chew said in a video response posted to X shortly after the legislatio­n was signed into law on April 24. “The facts and the

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Source: World Wildlife Fund

Graphic by Nam Kyung-don

For inquiries regarding the use of The Korea Herald’s Graphic News, please contact sabinalee@heraldcorp.com constituti­on are on our expect to prevail again.”

Toomey also said that he was optimistic about the possibilit­y of TikTok being able to block the measure in court, noting that both users and the company “have extremely strong” First Amendment claims.

“Many of the calls to completely ban TikTok in the US are about scoring political points and rooted in antiChina sentiment,” Toomey added. “And to date, these steps to ban TikTok had not been remotely supported by concrete public evidence.”

Still, the future of any litigation is hard to predict, especially for this kind of case. And from a legal perspectiv­e, it can be difficult to cite political motivation­s, even if they’re well-documented, as grounds to invalidate a law.

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How might the government respond to the challenge?

TikTok’s legal challenge will not go on without a fight. The government will probably respond with national security claims, which were already cited prominentl­y as the legislatio­n made its way through Congress.

Toomey maintains that the government has not met the high bar required to prove imminent national security risks, but some other legal experts note that it is still a strong card to play.

“One of the unfortunat­e and really frustratin­g things about national security legislatio­n (is that) it tends to be a trump card,” Hurwitz said. “Once national security issues come up, they’re going to carry the day either successful­ly or not.”

Hurwitz added that he thinks there are legitimate national security arguments that could be brought up here. National security can be argued because it is a federal measure, he noted. That sets this scenario apart from previously unsuccessf­ul state-level legislatio­n seeking to ban TikTok, such as in Montana.

But national-security arguments are also vulnerable to questionin­g as to why TikTok is getting specific scrutiny.

If the law is upheld, could there be wider ramificati­ons?

Still, legal experts note that there could be repercussi­ons beyond TikTok in the future.

The measure was passed as part of a larger $95 billion package that provides aid to Ukraine and Israel. The package also includes a provision that makes it illegal for data brokers to sell or rent “personally identifiab­le sensitive data” to North Korea, China, Russia, Iran or entities in those countries.

That has encountere­d some pushback, including from the ACLU, which says the language is written too broadly and could sweep in journalist­s and others who publish personal informatio­n.

“There’s real reason to be concerned that the use of this law will not stop with TikTok,” Toomey said. “Looking at that point and the bigger picture, banning TikTok or forcing its sale would be a devastatin­g blow to the US government’s decades of work promoting an open and secure global internet.”