TikTok has intensified its opposition to the Biden administration over a law that could potentially ban the app in the United States. In a recent court filing, TikTok argued that American users might be isolated from global content if the platform is forced to find a new owner.
The filing also revealed, for the first time, the text of a draft agreement between TikTok and the U.S. government. TikTok claims this agreement would have addressed national security concerns but was discarded in favor of legislation that the company argues violates the First Amendment.
This filing is TikTok’s initial move in a crucial case that could determine the app’s future in the U.S., where it has 170 million users. It also raises questions about how courts interpret the First Amendment in relation to online speech. The Justice Department has declined to comment on the matter.
TikTok has maintained that it is not feasible for its Chinese parent company, ByteDance, to divest from the app by the January 2025 deadline set by the new law. The company argues that such a divestiture is not possible technologically, commercially, or legally.
“Even if divestiture were feasible, TikTok in the United States would be reduced to a shell of its former self,” the company stated in its brief. “It would become an island, preventing Americans from exchanging views with the global TikTok community.”
The law TikTok is challenging prohibits the type of data-sharing agreements necessary to display international TikTok content to U.S. users, the company claimed.
This warning was echoed by a group of TikTok content creators, including a football coach, a sexual assault survivor advocate, and a U.S. Air Force veteran. They argued that the law would restrict their ability to choose where and how to express themselves, infringing on their First Amendment rights.
TikTok’s focus on the draft agreement with the Committee on Foreign Investment in the United States (CFIUS) could be central to its case. The company argues that the proposed deal could have achieved the government’s goals without requiring a divestiture or app ban. Whether the Biden administration overlooked a less restrictive alternative could become a factor in assessing the law’s constitutionality.
In the filing, TikTok said the agreement was never signed despite years of negotiations and numerous meetings with U.S. officials. After months of silence starting in September 2022, CFIUS allegedly informed TikTok in March 2023 that senior government officials demanded divestment without explaining why the agreement was insufficient.
TikTok added that it requested meetings with senior U.S. officials but received no meaningful responses.
For years, U.S. officials have warned that the Chinese government could access TikTok’s user data through its influence over ByteDance. The Trump administration attempted to ban TikTok by executive action, but legal challenges quickly halted those efforts. As Biden signed the new legislation, Trump reversed his stance, saying a ban would only benefit TikTok’s rival, Meta.
Independent cybersecurity experts acknowledge the potential for data access based on Chinese laws but note that it remains hypothetical. They also point out that China can obtain sensitive data from other sources, such as purchasing it on the open market.
U.S. officials have not publicly presented evidence that China has accessed U.S. users’ TikTok data. However, they warn that such information could be used for propaganda or to identify intelligence targets. Members of Congress have received classified briefings about the app’s potential risks.
TikTok has denied ever giving the Chinese government access to its data and criticized the confidential congressional briefings as part of a flawed and secretive legislative process.
The company’s brief included an appendix with the entire 103-page draft agreement. The document outlines Project Texas, TikTok’s plan to segregate U.S. user data from its global operations. It also includes a provision allowing the U.S. government to temporarily stop or shut down TikTok if the company fails to comply with specific requirements, such as allowing inspectors to review its source code.
TikTok’s filing stated that the company has spent $2 billion voluntarily implementing Project Texas.
The filing also included a signed declaration from Christopher Simkins, a third-party expert and former CFIUS official. Simkins stated that the proposal was as robust as any he had seen in two decades of experience and that TikTok’s national security risks would be reduced to a low level if implemented.
