TikTok Made Its Case Against Its US Ban in Court – But Little Has Changed So Far

TikTok dedicated around two hours to fighting for its survival before a trio of US judges from the U.S. Court of Appeals for the D.C. Circuit. The case, which seems to be TikTok’s most challenging legal dispute to date, kicked off back in April 2024, when President Biden officially signed the ‘PAFACA’ act that can ban social media services if they are deemed "foreign adversary-controlled."

The act ceases to be applicable only if the respective application is divested and is no longer regarded to be controlled by a foreign adversary of the United States. Currently, the US defines the following countries as "foreign adversaries": China, Cuba, Iran, North Korea, Russia, and the Maduro Regime in Venezuela.

TikTok’s key argument is that based on the First Amendment to the US Constitution, free expression and freedom of speech surpass the national security concerns of the US Government. Shutting down the app, which is currently being used by over 170 million US citizens, would, therefore, mean a gross violation of the First Amendment rights of US users. The platform argued that the law targeting it is ‘unconstitutional’ and asked for its overturn.

While the judges second the notion that banning TikTok could violate the rights of US-Americans, they also pointed out that the decision regarding the ban cannot be simply based on the definition of the First Amendment as it only applies to US-based companies. As TikTok is owned by ByteDance, which is registered as a Chinese company, the PAFACA, rather than the First Amendment, applies here.

“The core point we’re making is one they’ve conceded — which is that [TikTok’s] code is made in China,” said the US Government’s attorney, Daniel Tenny.

TikTok’s legal team opposed this assertion, claiming that while “some of the code” used for running the app originated in China, most decisions are made in the USA. The company also stated that it has invested more than $2 billion into company restructuring so that the app’s US operations, headquartered in Los Angeles, are visibly separated from ByteDance’s headquarters in Bejing.

The social media platform’s attorney, Andrew Pincus, went on to argue that TikTok is the only foreign-owned app targeted and scrutinized by the US Government, comparing it to Politico and Business Insider, two media outlets that are owned by a German publisher. Something that Pincus forgets to omit in his argument is that, as we mentioned at the beginning of this article, unlike TikTok, Politico, and Business Insider are not owned by a foreign adversary, and thus, the PAFACA does not apply to them.

Pincus urged that if the US Government wants to ban the app, it should provide a clear justification and compelling reason for doing so. Additionally, it should provide evidence that it has exhausted all other measures of dealing with TikTok’s issues before banning it.

Overall, however, the judges didn’t seem fazed by TikTok’s representatives’ argumentation. Some judges also pointed out that it was almost as if TikTok was asking the court to send the law back to Congress to be amended as a way to overturn the law.

The court has further noted that whatever the basis for passing the PAFACA law was, it would show deference to Congress that it had established a legitimate national security threat. The question is whether a potential security risk is enough to justify speech restrictions.

What exactly the Department of Justice has against TikTok has been under a hot debate in this case. Biden’s administration has previously pointed out the national security concern coming from TikTok’s close link to the Chinese tech company. However, whether the Chinese government has ever actually accessed data of US citizens remains unknown.

It is unclear when the federal court might reach a decision regarding the case, but the law sets a deadline of January 19, so it is assumed that the court will decide before that. Regardless of the decision, legal experts believe the case will likely go to the Supreme Court, with the losing side expected to appeal against the ruling of the federal court.