TikTok Inc. and ByteDance argued in a new federal court filing that a new law banning TikTok is “manifestly unconstitutional” if the app doesn’t divorce its parent company.
The Protecting Americans from Applications Controlled by Foreign Adversaries Act, passed and signed into law late last month, specifically targets ByteDance and its subsidiary TikTok Inc., requiring the former to divest the latter within 270 days.If ByteDance doesn’t do this, TikTok app will be banned in the US
Congress is ‘silencing 170 million Americans’ [TikTok] TikTok argued that it was unconstitutional “for the purpose of communication” and “enacted a two-tiered speech regime.”
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The new law allows similar ultimatums to be issued to other social media platforms with ties to “foreign adversaries” if the president believes they have ties to them. But that process requires at least some nominal checks and balances, and those don’t apply in TikTok’s case. No other apps or companies are explicitly mentioned in the new legislation.
TikTok’s statement said: “For the first time ever, Congress has enacted a law imposing a permanent, nationwide ban on a single, designated speech platform and prohibiting every American from participating in a unique platform that is home to more than 1 billion people worldwide. Online communities.
The company asked the court to review the constitutionality of the law, arguing that it violated both the First Amendment and the Constitution. The Constitution prohibits bills of disenfranchisement to regulate or punish certain entities (without due process).
TikTok also argued that the law violated its “right to equal protection under the Due Process Clause of the Fifth Amendment because it singled out petitioners for adverse treatment without justification.”
An American company with U.S. rights
Opponents of TikTok often argue that as a Chinese company, TikTok is not protected by free speech and that the First Amendment does not apply here.
This is wrong in two ways. First of all, because TikTok in the United States user With First Amendment rights, no problem here.
Secondly, because TikTok Inc. yes An American company. It is incorporated in California, where it maintains its principal office, and has additional offices in New York, San Jose, Chicago and Miami.
TikTok Inc. is a subsidiary of ByteDance, which is incorporated in the Cayman Islands (not China) and whose leadership is based in Singapore and the United States (not China).
Byte bounce used to be Bytebeat was founded in China in 2012. Another 21% is held by company employees (which includes about 7,000 Americans, according to the petition), and 58% is held by institutional investors, including BlackRock (a U.S. company), General Atlantic (a U.S. company) and Susquehanna International Group (headquartered in Pennsylvania).
It’s difficult to determine whether TikTok (the platform, not the American company) belongs to any particular country. But the idea that it is purely a “Chinese app” is clearly wrong.
Ban by any other name
TikTok rejects the idea – often cited by politicians in support of the law – that it is not a ban and therefore not a ban actually Censorship.
“In fact, banning TikTok is clearly unconstitutional, and even the bill’s sponsors recognized this reality and vigorously attempted to portray the law as not a ban at all, but merely a regulation of TikTok ownership,” the petition states. “They claim the bill is not a ban because it gives ByteDance a choice: spin off TikTok’s U.S. operations, or be shut down.”
“But in reality, there is no alternative,” the company argued. “The ‘qualified divestiture’ required by the bill to allow TikTok to continue operating in the United States is simply impossible: commercially, technically, and legally impossible. It is certainly impossible to proceed within the 270-day period required by the bill.”
The petition lists multiple reasons why a divestment is unfeasible, including that the source code is so large and complex that it would technically be “technical to move all TikTok source code development from ByteDance to a new TikTok owner…” impossible”.
“It would take years for a completely new set of engineers to become sufficiently familiar with the source code to perform the ongoing, necessary maintenance and development activities for the platform,” TikTok’s petition states. “Furthermore, in order to keep the platform functioning properly, these engineers need Access to ByteDance’s software tools, which is prohibited by the bill,” the petition also states, “The Chinese government has made it clear that it will not allow divestment of the recommendation engine that is key to TikTok’s success in the United States.”
“Like the United States, China regulates the export of certain technologies originating in China,” the petition states. “Under these regulations, any recommendations developed by engineers employed by ByteDance’s Chinese subsidiary are prohibited,” China’s official news agency reported. The sale of algorithms, including TikTok, requires a government license. “China adopted these enhanced export control restrictions between August and October 2020, just before the President,” the petition states. [Donald] Trump’s executive orders against TikTok on August 6, 2020, and August 14, 2020.
no due process
TikTok argued that even if divestment could occur, the conduct “remains an extraordinary and unconstitutional assertion of power.” It opens the door for governments to simply declare that companies they don’t like must divest themselves of specific products (including speech platforms) or they will be banned. “If Congress could do that, it could circumvent the First Amendment by invoking national security and ordering the publisher of any individual newspaper or website to sell to avoid being shut down.”
“By banning ‘TikTok’ and all online platforms and software applications provided by all ByteDance subsidiaries, Congress has created a law that limits a wide range of protected speech,” the report concluded. But “under the First Amendment, “The government cannot regulate the ownership of newspapers, websites, online platforms and other privately created forums for speech.”
The company argued that in this case, lawmakers’ strategy to ban TikTok was pursued without Congress identifying any non-hypothetical dangers and without considering less restrictive means to alleviate any concerns.
TikTok Inc. “has been working with the government on a voluntary basis for four years to develop a framework to address the government’s concerns,” it noted. As part of the partnership, the company “voluntarily invested more than $2 billion to establish a technical and governance protection system—sometimes referred to as the ‘Texas Plan’—to help protect U.S. user data and the integrity of the U.S. TikTok platform , to prevent foreign hackers from invading.
The company also committed to developing a draft national security agreement with the Committee on Foreign Investment in the United States. “Congress shelved this tailor-made agreement and instead pursued a politically expedient and punitive approach, targeting an unpopular publisher and speaker (TikTok Inc.), a speech forum (TikTok), and… The forum’s ultimate owner (ByteDance Ltd.),” the petition states.
TikTok Inc. and Bitbeat are now asking the court to “issue a declaratory judgment that the Act violates the U.S. Constitution” and order blocking the U.S. Attorney General from enforcing the Act.
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