TikTok has promised to sue over the possible US ban. What is the legal perspective?

NEW YORK — NEW YORK (AP) Legislation requiring TikTok's parent company to sell the video-sharing platform or face a ban in the United States received formal approval from President Joe Biden on Wednesday. But the new law could face an uphill battle in court.

Critics of the “sell or be banned” ultimatum say it violates TikTok users’ First Amendment rights. The app's Chinese owner, ByteDance, has already promised to file a complaint, calling the measure unconstitutional.

But success in a legal challenge is not guaranteed. Opponents of the law, which include advocacy organizations like the American Civil Liberties Union, argue that the government falls far short of justifying the ban on TikTok, while others say national security claims could still prevail. .

For years, lawmakers on both sides have expressed concern that Chinese authorities could force ByteDance to hand over U.S. user data, or influence Americans by removing or promoting certain content on TikTok. The United States has yet to provide public evidence to support these claims, but political pressure has mounted regardless.

If confirmed, legal experts also point out that the law could set a precedent with broader consequences for digital media in the United States.

Here's what you need to know.

This 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 U.S. users.

Patrick Toomey, deputy director of the ACLU's National Security Project, said a ban on TikTok would stifle free speech and restrict public access to a platform that has become a central source of information sharing.

One of the key questions will be whether the legislation interferes with the overall content of speech on TikTok, notes Elettra Bietti, assistant professor of law and computer science at Northeastern University, because the content-based restrictions meet a level higher control.

ByteDance has not yet formally filed a complaint, but Bietti said she expects the company's challenge to focus primarily on whether a ban infringes on these broader privacy rights. freedom of expression. Additional litigation involving TikTok's commercial players, such as companies and influencers who make a living from the platform, could also arise, she added.

TikTok expresses confidence in the prospects of its planned challenge.

Rest assured, we're not going anywhere, TikTok CEO Shou Chew said in a video response posted to X on Wednesday. The facts and the Constitution are on our side and we hope to prevail again.

Toomey also expressed optimism that TikTok could block the measure in court, noting that users and the company have extremely strong First Amendment claims.

Many calls to completely ban TikTok in the United States are aimed at scoring political points and are rooted in anti-China sentiment, Toomey added. And until now, these moves to ban TikTok had not been supported by concrete public evidence.

However, the future of any litigation is difficult to predict, especially in this type of case. And from a legal perspective, it can be difficult to invoke political motivations, even if they are well documented, as grounds to invalidate a law.

The battle could also last for some time, with the possibility of appeals going all the way to the Supreme Court, which would likely uphold the law because of its current makeup, said Gus Hurwitz, a senior scholar at the University of Pennsylvania . Carey Law School.

TikTok's legal challenge won't go down without a fight. The government will likely respond with national security claims, which have already been widely cited as the legislation passed Congress.

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

One of the unfortunate and really frustrating aspects of national security legislation is that it tends to be a trump card, Hurwitz said. “Once national security issues arise, they will prevail successfully or not.”

Hurwitz added that he thinks there are legitimate national security arguments that could be made here. National security can be challenged because it is a federal measure, he stressed. This distinguishes this scenario from previously unsuccessful state legislation aimed at banning TikTok, such as in Montana.

But national security arguments are also likely to be questioned as to why TikTok is under specific scrutiny.

Personally, I think what TikTok does is not that different from other U.S.-based companies, Bietti said, pointing to tech giants ranging from Google to Amazon. The question is: why ban TikTok and not the activities and surveillance carried out by other companies in the United States?

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

The measure was adopted as part of a broader $95 billion package to provide aid to Ukraine and Israel. The package also includes a provision that prohibits data brokers from selling or renting sensitive personally identifiable data to North Korea, China, Russia, Iran or entities from those countries.

The proposal has met with some pushback, including from the ACLU, which says the language is too broadly worded and could attract journalists and others who post personal information.

There are real reasons to worry that the use of this law won't stop with TikTok, Toomey said. Considering this point and the bigger picture, banning TikTok or forcing its sale would be a devastating blow to the U.S. government's decades of work toward an open and secure global internet.

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