TikTok fights for survival in latest filing as ban approaches

TikTok is fighting back in its latest court filing in the battle over its future in the U.S., arguing that the law that could ban the app represents "the most sweeping speech restriction in the country's history."

The court filing on Thursday is the latest salvo in TikTok’s lawsuit seeking to block a law from taking effect that would shutter the app’s American operations unless it divests from ByteDance, its China-based parent company.

Oral arguments in the case are scheduled for Sept. 16 before a federal appeals court in Washington where lawyers for TikTok will ask the court to halt the law.

The Justice Department has defended the law President Biden signed in April on national security grounds. They have stated that the app could be weaponized by China to disseminate propaganda to 170 million Americans and that TikTok could be used to help the Chinese government collect personal information of its users.

Free speech protections, the government has argued in its papers, should not extend to a Chinese-controlled recommendation engine.

But in its new filing, TikTok’s legal team responded that the U.S. is illegally singling out TikTok and echoed what has become a common refrain from the company: The government’s fears are speculative and lack hard evidence.

“The government cites no evidence of this supposed Chinese control—and its contention is flatly wrong,” TikTok attorney Alex Berengaut wrote in the filing to the Court of Appeals for the District of Columbia Circuit.

The Justice Department’s legal papers defending the law include large sections that have been redacted, portions that could contain classified information about TikTok. And one crucial question is what exactly the government has learned about the app that it has not yet made public.

In a separate filing also submitted to the court on Thursday, the Justice Department asked the court to allow key evidence into the case under seal, meaning it would not be publicly available, since it involves a “top secret” classified designation.

“The government is not trying to litigate in secret, but rather to litigate in public to the greatest extent possible, while still providing the Court with access to the classified information that informed the government’s national-security judgments that are central to this litigation,” lawyers for the Justice Department wrote.

TikTok’s coveted algorithm — the software code that determines what millions of people see on the app — is a major subject of dispute between the government and the company.

While ByteDance does own the algorithm, which helps power other social media apps in China, TikTok says the version used on the U.S. app is stored and overseen by Texas software company Oracle. The company says it is walled-off under a firewall plan TikTok has undertaken to try to allay the national security concerns of lawmakers in Washington.

The Justice Department doubts this claim, writing in Thursday’s filing that “an entity founded and based in China and subject to Chinese laws controls TikTok’s recommendation algorithm.”

The algorithm in question could not be sold without the blessing of the Chinese government under the country’s export-control laws, yet TikTok says the American version of the algorithm is trained only on U.S. user data and under the supervision of Oracle.

The filing from TikTok shared new details about a nearly-reached deal with the White House that eventually fell apart.

In a submission attached to TikTok’s latest filing, William Farrell, an executive who oversees data security, wrote that, in August 2022, he thought U.S. officials and TikTok had finally reached a deal after years of scrutiny under two presidential administrations.

Farrell said he worked on 20 drafts of a national security agreement with top White House officials. In addition, Justice Department lawyers started settlement talks with TikTok for “final resolution of the matter.”

Officials in the Departments of Justice and Treasury told Farrell he should expect final comments soon from the Biden administration, but the feedback never arrived. Farrell requested meetings with national security officials in the White House, but he said he was similarly rebuffed.

Behind the scenes, though, China hawks had persuaded top administration officials, according to people close to the discussions. Instead of striking a deal, the White House switched gears and decided it would give TikTok an ultimatum: Separate from ByteDance or face the full wrath of the federal government.

Fully divesting U.S. operations, TikTok maintains, would be neither practical nor feasible. More than 90% of TikTok’s global users are outside of the U.S. and cutting off American operations would essentially make TikTok compete with itself, with an U.S. version up against a version in Canada, Europe and elsewhere, the company argues.

Divesting TikTok from ByteDance, the company’s lawyers wrote on Thursday, “would guarantee commercial failure.”

The ban is set to take effect Jan 19, 2025, with the possibility of a three-month extension if a potential sale is in play.