The future of short video service TikTok in the US, where it has 170 million users, is now in the hands of three judges. And at oral arguments the day before, they expressed skepticism about the platform’s case.
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The lawsuit was filed by lawyers from TikTok itself and a group of bloggers – they are seeking to block a law passed by the American Congress and signed by the president, which could lead to the blocking of the platform in the country. The plaintiffs made their case before a three-judge panel of the D.C. Circuit Court of Appeals. The law provides for the seizure of the platform from its owner, the Chinese ByteDance, by January 19, and the company believes that this provision is actually a veiled blocking of the service – it will suppress the freedom of speech of bloggers and TikTok users, and will also limit the amount of information that Americans can receive.
Representatives of the Ministry of Justice spoke on the side of the defense. According to them, the law is a package of targeted measures against a company that poses a threat to US national security, since it is allegedly subject to the influence of an unfriendly state. Two of the judges who composed the panel listened to the arguments, and the third asked questions to representatives of both sides. The judges expressed doubts about the advisability of mitigating measures against TikTok – they consider the platform administration’s disclosure of its data and content moderation methods to be insufficient. The package of measures depends on trust in the company itself, which the government fears is a tool in the hands of a shadowy foreign adversary.
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Judge Douglas Ginsburg, a former President Ronald Reagan appointee, rejected TikTok lawyer Andrew Pincus’s assertion that the law was designed to target one company. According to the judge, the document identifies a category of companies controlled by hostile states, and specifically names one for which there is an urgent need to take action – based on several years of negotiations that the government conducted that led to nothing.
Speaking on behalf of TikTok bloggers, Jeffrey Fisher said the law could limit Americans’ ability to participate in the production of content for foreign-owned companies, including Politico, Spotify and the BBC. The judges acknowledged that the First Amendment to the US Constitution, which guarantees freedom of speech, applies to TikTok and platform owner ByteDance, but this right is not the subject of the law at issue. Government representatives tried to show the court some secret documents, the disclosure of which could harm the country’s national security, but these documents were never presented during the oral arguments. Instead, the parties and the court grappled with questions about the extent to which the First Amendment could apply in the case and how to evaluate the foreign owner’s role in TikTok.
Blogger group spokeswoman Kiera Spann said during a briefing after the hearing that she considered the platform to be the “least censored and most reliable source of information”; in her opinion, the conversations that are happening on TikTok are not happening on any other social network.