A three-judge panel of the D.C. Circuit U.S. Court of Appeals sounded unconvinced Monday that the TikTok “sale or ban” law, signed by President Joe Biden in April, was unconstitutional.
The law, which would have gone into effect no earlier than this January, is effectively on pause while TikTok’s legal challenge works its way through the courts.
In a two-hour hearing, lawyers for TikTok argued that its current business structure is protected by its free speech rights under the First Amendment and that the government’s argument against Chinese influence over TikTok’s algorithms is unsupported.
The U.S. government argued that TikTok, owned by parent company ByteDance, which was founded by Chinese entrepreneurs, poses a national security threat and exposes the data of its 170 million American users to the Chinese Communist Party. Judges questioned TikTok about China’s ability to determine what content is served to American users via TikTok’s algorithms, including its “For You Page.”
“The government is just flat wrong,” TikTok’s lawyer, Andrew Pincus said. “The recommendation engine itself is influenced in the U.S., it’s trained in the U.S. on U.S. data, it’s modified in the U.S. based on U.S. content moderation decisions.”
In 2022, TikTok launched an initiative called Project Texas to demonstrate its commitment to safeguarding U.S. user data and governance transparency. It includes having Oracle, a U.S. software company, isolate TikTok’s services in the U.S. within Oracle’s U.S. cloud environment. In December 2022, Forbes reported that ByteDance employees used TikTok to monitor its journalists’ locations in an effort to discover which employees were leaking confidential materials. TikTok and ByteDance have since condemned the practice and said that three employees involved were terminated, with an additional employee resigning.
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