TikTok is getting more aggressive in responding to the U. S government by citing its freedom of speech rights, or the First Amendment even if it’s owned by foreigners. On Thursday, the social media giant drew parities between other American news outlets owned by foreign companies as it continues to push against a possible forced sale or even ban in the United States.
TikTok's First Amendment Defense
TikTok’s legal strategy involves it continuing to argue that it should afford to access the First Amendment protections like other media companies with operations and headquarters in the United States but operating from foreign jurisdictions. This defense was in reaction to a legal brief filed by the U. S. Department of Justice (DOJ) in a Washington federal appeals court, which claimed that TikTok, ByteDance, or its U.S. operations have rights to free speech under the First Amendment since they are foreign-based, or have foreign influence.
More recently in a legal filing, TikTok’s lawyers aggressively argued against the government’s position arguing that the functions here in the United States of TikTok are a separate entity to its Chinese owner and thus the company has protection under the United States Constitution. They further provided examples of American media organizations that have foreign owners such as Politico, Business Insider, and Fortune. Politico and Business Insider are operated by the German Axel Springer SE, while the American Fortune is owned by Thai’s Chatchaval Jiaravanon.
“Many domestic media outlets such as Politico, Fortune, Business Insider, they do not strip themselves of their First Amendment rights merely because they are owned by foreign interests,” TikTok’s lawyers noted. They followed this up by pointing out that the notion of ‘state action’ has “no antecedents” to justify the government’s narrow view of free speech under the First Amendment.
Government's National Security Concerns
This is why, the U. S. government’s efforts to compel ByteDance to sell TikTok or see it cease to operate in the country are mostly rooted in nationalism. The DOJ has argued that the Chinese ownership of TikTok raises a huge concern because users’ data can be accessed and controlled by the Chinese administration. The government’s main concern is that this company’s ownership became a means through which the Chinese government would be able to access the data of millions of American citizens.
The DOJ’s legal brief also mentioned that the federal law which demands the sale of TikTok is aimed at addressing those threats, and, therefore, does not violate freedom of speech. TikTok’s security risks were demonstrated by the government where it has produced cases of data sharing between TikTok employees in the U. S and ByteDance engineers in China.
Negotiation Disasters and Project Texas
TikTok and the prior administration of the United States in the person of Donald Trump have been in a negotiation process for quite some time to find a solution to the problem of the security concerns of the government while not forbidding the existence of TikTok in the United States market nonetheless at some point, two years before Biden presidency, these deliberations fell through.
TikTok previously offered a plan of about 90 pages called Project Texas that included steps to separate TikTok’s operations in the US from ByteDance in China. The proposal was designed to contain measures that were aimed at reassuring the government, measures that included data privacy, and provisions that were meant to prohibit the Chinese from accessing American users’ data. But, the DOJ dismissed the idea saying that it was insufficient to create sufficient distance between TikTok and its parent company.
The government also cast aspersions on the ability to implement compliance with the terms of the Project Texas proposal due to the large size and intensity of TikTok.
TikTok’s lawyers have accused the government of mishandling the negotiations, saying some of the concerns that are being painted as failures of the proposal were never raised during the talks. They also add that the government had no proper reason not to continue negotiating and that TikTok provided enough measures that would alleviate the purported worries.
Some information is sensitive and can put its clients and consumers in a disadvantaged position and as such, this company has classified some of the information and has been in a legal battle with some of its customers over the disclosure of such information.
In recent months, the DOJ has also presented evidence under seal on grounds that the material includes information classified at Top Secret levels. These requests have been equally refuted by TikTok holding that the case should be open and its supporting evidence made public.
TikTok’s future and the debate about the operations of foreign-owned technology companies in the U. S. may depend on the verdict of the case, which is to begin on September 16 with oral arguments.
Conclusion
To that end, TikTok takes its stand against the U. S. government’s desire for a forced sale or ban on the grounds of the First Amendment regardless of foreign ownership. TikTok is trying to compare itself with other media organizations in the United States that have foreign ownership, where it wants to stay in the country unhampered by the demand for sale to an approved buyer. The court hearings that will be held shortly will reveal the destiny of TikTok in the United States.
