TikTok and its Chinese parent ByteDance have followed through on their warning they would seek to overturn the US divest or ban legislation.

TikTok and ByteDances filed a lawsuit on Tuesday against the US government in the court of appeals for the District of Columbia.

The lawsuit argues that the law (the Protecting Americans From Foreign Adversary Controlled Applications Act) is unconstitutional.” They also allege the US legislation violates free speech.

TikTok owner ByteDance. Image credit: ByteDance

Divest or ban

It comes after after the US Senate last month has passed the legislation that gives ByteDance up to a year to divest TikTok, or face a nationwide ban across the United States.

Also immediately US President Joe Biden followed through on his previous commitment to back the bill, and signed the bill into law.

TikTok and ByteDance condemned the ‘Protecting Americans From Foreign Adversary Controlled Applications Act’ and said they would challenge it in the US courts.

Sources also indicated that ByteDance would prefer to shut down its loss-making app rather than sell it, if all legal options are exhausted.

ByteDance also denied it would sell TikTok without the powerful recommendation algorithm that has driven the platform’s success.

American users

TikTok is used by 170 million users in the United States and has thousands of content creators in that country.

Thousands of users had inundated US lawmakers with telephone calls as the ban or divest bill went through the House and Senate.

However a recent poll by Reuters/Ipsos found that most people (58 percent) in the United States view TikTok as a Chinese influence tool.

Yet 13 percent of respondents disagreed, and the rest were unsure or didn’t answer the question.

The ban or divest law gives Beijing-based ByteDance 270 days (or roughly nine months) to sell TikTok to a US-based company, or the app will face a total ban from American app stores, as well as being prohibited from “internet hosting services” that support the app.

President Biden could extend the deadline another 90 days if he determines ByteDance has made progress toward a sale.

That would give TikTok potentially up to a year before facing a ban.

But ByteDance is subject to Chinese law, and the Chinese government has previously stated it will oppose a sale.

Lawsuit challenge

And now TikTok and ByteDance have in their lawsuit argued that “for the first time in history, Congress has enacted a law that subjects a single, named speech platform to a permanent, nationwide ban, and bars every American from participating in a unique online community with more than 1 billion people worldwide.”

“They claim that the Act is not a ban because it offers ByteDance a choice: divest TikTok’s U.S. business or be shut down,” the lawsuit alleges.

“But in reality, there is no choice,” it stated. “The ‘qualified divestiture’ demanded by the Act to allow TikTok to continue operating in the United States is simply not possible: not commercially, not technologically, not legally.And certainly not on the 270-day timeline required by the Act.”

“Petitioners have repeatedly explained this to the US government, and sponsors of the Act were aware that divestment is not possible,” the lawsuit added. “There is no question: the Act will force a shutdown of TikTok by January 19, 2025…”

“Of course, even if a ‘qualified divestiture’ were feasible, the Act would still be an extraordinary and unconstitutional assertion of power,” the lawsuit argued.

“If upheld, it would allow the government to decide that a company may no longer own and publish the innovative and unique speech platform it created. If Congress can do this, it can circumvent the First Amendment by invoking national security and ordering the publisher of any individual newspaper or website to sell to avoid being shut down.”

Tom Jowitt

Tom Jowitt is a leading British tech freelancer and long standing contributor to Silicon UK. He is also a bit of a Lord of the Rings nut...

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