Tiktok fights US ban in court
A new US law bans Tiktok. Owner Bytedance wants to have the law declared unconstitutional by the competent court.
(Bild: Camilo Concha/Shutterstock.com)
"The facts and the constitution are on our side and we expect to prevail again." With these words, Singaporean TikTok CEO Shou Zi Chew reacted at the end of April to the new law banning TikTok in the USA, with effect from the beginning of 2025. The Chinese company has now filed a lawsuit. It refers to four constitutional provisions that the law violates.
Officially, the law is called the Protecting Americans from Foreign Adversary Controlled Applications Act. It prohibits hosting services as well as distribution and updates for "applications controlled by foreign adversaries". Even the distribution of relevant source code is prohibited. The penalties amount to up to 5,500 US dollars per user.
However, the law provides for two classes of affected operators: On the one hand, the Cayman Islands-based holding company Bytedance Ltd and its app Tiktok are mentioned by name; on the other hand, the US President can declare other operating companies to be "foreign adversaries" – this, however, with exceptions, under certain conditions, only after prior notice and upon submission of a public report describing the specific threats to the national security of the United States of America.
The constitutional arguments
No such process existed for TikTok, and there is no description of alleged threats to national security. Accordingly, Bytedance believes that the right to equal treatment has been violated. At the same time, it is a conviction by law(Bill of Attainder), which is also expressly prohibited by the US Constitution.
As with the successful lawsuit against the TikTok ban imposed by then US President Donald Trump by presidential order, Bytedance is once again insisting on the First Amendment of the US Constitution. This guarantees the right to free speech, and Tiktok is precisely a stage for citizens to express themselves.
The fourth constitutional argument is that the law is tantamount to unconstitutional expropriation. According to previous decisions of the US Supreme Court, this prohibition also applies to the reduction of the value of existing companies through government measures, not just pure nationalization.
Sale pointless
In theory, the law provides a way out for companies whose applications are banned: They should sell their applications within 270 days and otherwise divest themselves of them entirely. Specifically tailored to Tiktok is the condition that the former owner does not share any data with the sold company and also does not cooperate about the algorithm for recommending content.
This algorithm is considered to be TikTok's secret recipe for success. The People's Republic of China has already banned its export, so Bytedance cannot sell it at all. Without the algorithm, TikTok is worth very little. This residual value would be reduced to almost zero by the legally required separation of content into "American" and "other", especially as American users like to consume short foreign videos.
According to Bytedance, it would be impossible to sell the content within the 270-day deadline. Nobody could take over the extensive source code and understand and use it without the Chinese developers. This makes the sale not only legally and economically impossible, but also technically impossible.
Bytedance also fights for future victims
The Chinese company is requesting that the law be declared unconstitutional and that the responsible minister be prohibited from enforcing the law. Bytedance has filed the lawsuit with the US Federal Court of Appeals for the District of Columbia.
This seems unusual, as federal appeals courts usually deal with appeals against decisions by federal district courts. However, the challenged law contains a special provision according to which actions against the law are to be brought exclusively before this federal court of appeals. This not only means that a different court has jurisdiction, but also that there is no ordinary appeal against the decision of this Federal Court of Appeal.
If Bytedance loses, it cannot appeal. While it may seek a rehearing before an expanded bench of the same court and/or a trial before the US Supreme Court, it has no legal right to do so. In fact, only a small percentage of such petitions are granted.
The Protecting Americans from Foreign Adversary Controlled Applications Act contains another bombshell: it only allows challenges to the law for 165 days from the time it was signed by US President Joe Biden at the end of April. This means that Bytedance is also fighting for companies that may be affected in the future and that cannot even know today that they may one day be banned under this US law.
The case is called Tiktok et Bytedance v Merrick B. Garland and is pending in the US Court of Appeals for the District of Columbia under case no. 24-1113.
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