Justice Dept. Defends TikTok Law That Forces App’s Sale or Ban
The Justice Department argued in a court filing on Friday that TikTok should be required to sell its American operations to resolve national security concerns about its Chinese parent company, ByteDance.
In the government’s first detailed response to TikTok’s lawsuit challenging a new U.S. law that could ban the social media app, the Justice Department said measures that TikTok previously offered to address the government’s security concerns — including walling off U.S. user data domestically — were insufficient. The Chinese government could still collect sensitive data on Americans or manipulate content, the agency argued, and it has incentive to misuse the app because of larger geopolitical goals.
The government claimed TikTok and ByteDance had already made decisions about content at China’s direction. In a mostly redacted section of a statement submitted alongside the government’s main filing, Casey Blackburn, an assistant director of national intelligence, said that the app and its parent company have “taken action in response” to Chinese “demands to censor content outside of China.”
“Given TikTok’s broad reach within the United States, the capacity for China to use TikTok’s features to achieve its overarching objective to undermine American interests creates a national-security threat of immense depth and scale,” the government said in its filing with the U.S. Court of Appeals for the District of Columbia Circuit. Under the law, any challenges must begin in that court.
If successful in making its case, the government could force the sale or ban of TikTok in the United States, under a landmark law that President Biden signed in April. If ByteDance doesn’t sell TikTok’s American operations to a non-Chinese owner by mid-January, app stores and web hosting services will be required to stop working with TikTok, a one-two punch devised to cut off the service domestically.
TikTok, which has 170 million U.S. users, sued in May to block the law, arguing that a sale isn’t possible and that a ban will hurt small businesses. The company has also said it offered extraordinary commitments to the U.S. government to address its security concerns, including giving an American company oversight of its algorithm and storing all data domestically. The fight is expected to eventually reach the Supreme Court.
Alex Haurek, a spokesman for TikTok, said “the government has never put forth proof of its claims, including when Congress passed this unconstitutional law.”
“Today, once again, the government is taking this unprecedented step while hiding behind secret information,” he said.
“It’s incumbent on the government to show Americans why it is too dangerous for us to use in its current form,” said Anupam Chander, a visiting scholar at the Institute for Rebooting Social Media at Harvard, who recently led a group of internet law professors in filing a brief supporting TikTok.
The Justice Department responded on Friday that those dangers stemmed from China’s authoritarian government, which has a history of censorship and of collecting personal data about individuals. Some of the information filed by the Justice Department in the case is classified and visible only to the judges overseeing the case.
“The serious national-security threat posed by TikTok is real, as evidenced by the public record and confirmed by classified information supplied by the intelligence community,” the government said in its public filing.
Laws in China allow the government to secretly demand data from companies and citizens and force their compliance, the agency said The Justice Department said in its filing that TikTok did not “even attempt to suggest that China would not find those data valuable” in its own legal filings.
The company collects detailed information, including user’s locations, what they look at and their private messages, as well as their phone contacts, according to the filing. The agency said the company’s proprietary algorithm — its secret sauce to success — lets it deliver content however it wants.
“That algorithm can be manually manipulated, and its location in China would permit the Chinese government to covertly control the algorithm — and thus secretly shape the content that American users receive — for its own malign purposes,” the agency said in its filing.
A top official in the Justice Department’s national security division, David Newman, said in a statement submitted to the court alongside the main filing that TikTok employee’s use of Lark, an internal messaging and collaboration tool, had allowed sensitive data about Americans to be “stored on Chinese servers and accessible to ByteDance employees located in China.”
The New York Times previously reported that TikTok employees used Lark to share users’ personal data, including driver’s licenses and child sexual abuse materials, sometimes in chat rooms with thousands of members that included ByteDance employees in China and elsewhere.
Mr. Newman also said that a tool inside Lark “allowed ByteDance and TikTok employees in the United States and China to collect bulk user information based on the user’s content or expressions, including views on gun control, abortion, and religion.”
Significant portions of the accompanying statements by government security officials were redacted.
Until Friday, the U.S. government shared its biggest national security concerns involving TikTok behind closed doors, including through classified briefings with lawmakers.
While TikTok argued in its suit that the law violated the First Amendment rights of its U.S. users, the Justice Department contended that those users were free to turn to other social media sites if TikTok was banned or sold.
“These arguments only underscore the concerns that motivated Congress: TikTok’s U.S. operations are ultimately subject to the direction of a Chinese company subject to Chinese laws; those operations require TikTok to share enormous amounts of U.S. users’ sensitive data with their Chinese-based counterparts; and China has specifically acted to maintain its ability to exercise control over TikTok,” according to the filing.
TikTok has argued that Congress did not properly consider its efforts to address the government’s security concerns before passing the law. In May, the company filed a trove of documents that detailed its confidential meetings and other interactions with top federal officials to bolster that argument.
It has also said it cannot sell the U.S. portion of the company within the law’s 270-day timeline. And the Chinese government has said it will restrict the export of “technology based on data analysis for personalized information recommendation services,” which could mean that the app’s recommendation algorithm can’t be sold.
A group of TikTok creators filed a separate challenge to the law in May, saying the law violated their First Amendment rights. TikTok is funding that lawsuit. Both challenges have been consolidated into one case.
The government will have to convince the court that its national security interests justify limiting free expression, legal experts say.
Earlier attempts to force a sale or ban of TikTok in the United States foundered in courts. In 2020, President Trump ordered ByteDance to sell the app or be banned from app stores run by American companies like Apple and Google. Federal courts stopped his plan from taking effect.
Montana last year passed a law that would have barred TikTok from operating within the state, saying the app presented a security threat to its residents. A federal judge blocked the ban, saying it most likely violated the First Amendment and exceeded the state’s authority.
Some narrow measures aimed at TikTok have been more successful. Texas banned TikTok on state government devices and networks. A federal judge upheld the ban, making it hard for some faculty members at public universities to use TikTok for research and teaching.
