A bill that could ban TikTok has passed both chambers of Congress and now heads to President Joe Biden’s desk, where it will likely be signed into law.
The bill, if signed, would require TikTok’s Chinese parent company, ByteDance, to sell the app or it would be banned in the United States. TikTok has confirmed that if the bill becomes law, it will seek a federal lawsuit. Court challenges would likely hinge on national security and free speech concerns.
“At the stage that the bill is signed, we will move to the courts for a legal challenge,” said Michael Beckerman, TikTok’s head of public policy for the Americas. He called the bill a “clear violation” of the First Amendment.
Some First Amendment experts say TikTok could make the case about censoring users, which means legislation such as the bill that passed the Senate on Tuesday could be shot down in courts.
“Longstanding Supreme Court precedent protects Americans’ First Amendment right to access information, ideas, and media from abroad,” Nadine Farid Johnson, policy director of the Knight First Amendment Institute at Columbia University told CNN.
“By banning TikTok, the bill would infringe on this right, and with no real payoff,” she said. “China and other foreign adversaries could still purchase Americans’ sensitive data from data brokers on the open market.”
A challenge in the legal system could mean that the legislation would be temporarily blocked, allowing TikTok to run business as usual while the debate plays out in the courts. If a court declines a temporary injunction, however, TikTok will still need to comply with the new law in the U.S. Some argue it would be difficult to defend the constitutionality of the law as it only applies to one app.
“Banning TikTok would selectively target one platform, and the speech rights of its 170 million users would be collateral damage,” Kate Ruane, director of the Center for Democracy & Technology’s Free Expression Project, said in a statement. “The data security issues for TikTok are the same for other platforms. The way to address them is to enact a comprehensive consumer privacy law.”
Former President Donald Trump tried to ban the app in 2020 prior to that year’s election but failed. Three federal courts have blocked a TikTok ban, two during the Trump administration and one more recently. The 270-day period means TikTok could remain as is until after the 2024 general election if ByteDance does not sell it.
Lawmakers from both sides of the aisle say TikTok is a national security risk for its Chinese ties. TikTok officials previously said the Chinese government has not asked for American data from the app and would not provide such data if asked for it.
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The app is estimated to be worth $100 million — only the largest technology organizations, such as Meta, Microsoft, Google, and Amazon, could likely afford the purchase. Former Treasury Secretary Steven Mnuchin has said he is looking to find a group of investors to purchase the app.
The Chinese government placed “content-recommendation algorithms” on the country’s list of export controls, which means the app can only be sold with Chinese government backing.