Federal judges have agreed with President Joe Biden’s Administration this Friday: if its parent company, the Chinese technology company Bytedance, does not put it up for sale before January 19. An appeals court in Washington has denied the company’s appeal against the law passed last spring ordering Bytedance to divest from the social network over concerns about the social network’s possible impact on national security. The Chinese company and, furthermore, it is impossible to comply.
The three-judge court has determined that the law “adequates to constitutional scrutiny” and, therefore, “the appeal is denied.” The measure that Congress voted on in April with the support of both Republican and Democratic parties, and that Biden signed into law, “was carefully drafted to deal solely with control by a foreign adversary, and was part of a broader effort to counter a well-demonstrated threat to national security from China,” they write in their opinion.
The decision can still be appealed to another higher appeals court or the United States Supreme Court. If Bytedance were to give up on it – something that seems unlikely, given what is at stake – or the Supreme Court were to uphold the lower court’s ruling, the Chinese-owned company would have to put an application used by 170 million up for sale at full speed. of Americans, the vast majority of them young, and has become one of the great sources of information—sometimes the only one—for its users. EITHER . A possible third option would be for the Government to grant the three-month extension provided by law in the event that the sale has not closed by then, but the Department of Justice finds that the parent company has done everything possible to divest. on the platform.
It is a decision that on January 19 would still fall to the outgoing president, Joe Biden. Starting at noon on the 20th, the task will fall to his successor, President-elect Donald Trump. During his first term, the Republican was very critical of the platform and threatened to ban it. In the election campaign this year, however, he declared that he was not in favor of closing the application on US soil.
The Biden administration alleges that TikTok poses a national security risk for two reasons. The first, because it has mountains of data on American users, especially on their viewing and consumption habits, which at a given moment it would be obliged to share with the Chinese Government if it demanded it. The second is that the algorithm it uses, which is the envy of the sector due to how tailored its suggestions are to each user, can be used to spread propaganda, false information or some other type of covert influence.
“The millions of TikTok users will need to find alternative means of communication” in case the application is not sold and the Government chooses not to grant the extension, recognize judges Douglas Ginsburg, Neomi Rao and Sri Srinivasan, appointed respectively by the presidents. Ronald Reagan, Donald Trump and Barack Obama. The trio of justices emphasize that Chinese ownership of the social network endangers the national security “of the United States, not that of the American Government” and that the Government “negotiated with TikTok over a years-long process in an effort to find an alternative solution.”
In its arguments to request the annulment of the law, Bytedance alleged that the US Government has failed to demonstrate that it represents a risk to national security. Also, that the application of the law would violate the sacrosanct right to free expression, included in the First Amendment of the US Constitution. In a legal report presented in June, the parent company and the social network explained that, if they had to separate, the application would lose the attributes that have made it so popular and, in practice, would be condemned to death. The sale, they maintained, “is simply not possible,” “neither commercially, nor technologically, nor technically.”
“Even if the separation were possible, in the United States TikTok wanted to be reduced to a mere shell, detached from the innovative technology that adjusts content to each user” individually, ByteDance and its platform alleged. The application, they explained, “would become an island, in which Americans would not be able to exchange views with the global TikTok community.” A situation similar to that affecting users in China itself, where the local version of the application, Douyin, lacks access outside the so-called “Great Firewall” imposed by Chinese internet censorship.
The United States Government assures that the law is not intended to force the closure of the application, but rather its sale, to protect the use that the owners of the platform can make of the data of millions of its citizens. “What we are focused on when applying this law now is working toward divestment in a manner consistent with the intent of the law and the national security concerns that led to its passage,” said National Security Advisor Jake Sullivan, in a press conference immediately after the measure was enacted in April.
The Court’s decision has already received the first criticism from civil rights organizations as a “dangerous and defective precedent.” “Banning TikTok outrageously violates the rights under the First Amendment (which protects freedom of expression) of millions of Americans who use this application to express themselves and communicate with people around the world,” said Patrick Toomey, deputy director of the TikTok Project. National Security of the American Civil Liberties Union (ACLU).
