Protecting American data from foreign adversaries has been a major concern for the United States government. In an effort to address this issue, President Joe Biden signed a law earlier this year that required ByteDance, the parent company of TikTok, to either sell the app to a non-Chinese company or face a ban in the country. However, attorneys representing TikTok and ByteDance argued that this law violated the First Amendment and was unconstitutional.
The attorneys compared TikTok and ByteDance to news companies like Politico and Business Insider, which are foreign-owned but still enjoy First Amendment protections. They questioned whether these American media companies would lose their constitutional rights simply because of their foreign ownership. This argument raises an interesting point about the potential implications of the law on other foreign-owned media organizations operating in the United States.
Despite the arguments put forth by TikTok and ByteDance, a federal court ruled against them, stating that they did not have First Amendment protections because they were foreign organizations operating abroad. This ruling has prompted the petitioners to question the lack of constitutional protection for U.S. newspapers that republish content from foreign publications. However, it is important to note that the media companies used as examples in the argument are not controlled by foreign adversaries.
ByteDance has appealed the ruling, and oral arguments in the appeals court are scheduled for September 16. The outcome of this appeal could have significant implications for the future of TikTok and other foreign-owned media organizations operating in the United States.
The law itself does not ban companies with foreign ownership; instead, it specifically targets “foreign adversary controlled applications.” The bill introduced by Reps. Mike Gallagher and Raja Krishnamoorthi defines the Chinese Communist Party (CCP) as a foreign adversary, along with the regimes of North Korea, Russia, and Iran. The goal of the law is to protect American data from being used by foreign adversaries for national security purposes.
One of the key arguments put forth by ByteDance is that the government must prove that the CCP controls the content on TikTok. However, the government argues that the law does not require this proof. The main concern is that American data could potentially be used by the CCP without the knowledge or consent of TikTok users, posing a significant national security risk.
TikTok and ByteDance have emphasized that the app and the parent company are not domiciled in China. They claim that the recommendation algorithm resides in the United States and that user data is stored in a secure Oracle cloud, not in China. While this may be true, it is important to consider that China has updated its counterespionage law to require companies in the country to hand over data upon request, even if they are foreign-owned. This means that ByteDance would have no legal protections against sharing TikTok data with the CCP if requested, regardless of the laws in the user’s country.
The U.S. National Counterintelligence and Security Center has already issued warnings to Americans and American companies in China about the broad counterespionage law. In addition, Congress passed a bill in March to prohibit the sale of Americans’ data to foreign adversaries, further emphasizing the need to protect sensitive information from falling into the wrong hands.
As the legal battle continues, it remains to be seen how the court will interpret the First Amendment rights of foreign-owned media organizations like TikTok and ByteDance. The outcome of the appeal could have far-reaching implications for the future of data protection and national security in the United States.
