Hey folks,
TikTok filed its lawsuit, so I break down what you need to know. I also have all the Apple iPad news. And Google decided to release a bunch of security news AND at the Pixel 8A. What a day! But thankfully, I'm here for you.
Because of the importance of this case, I’m letting the free subscribers get the TikTok story today free of charge. Paid subscribers get the whole shebang.
Enjoy!
Tom
Big Story
"TikTok Sues to Block U.S. Ban - WSJ"
"TikTok is suing the US government to stop its app being banned"
"Knight Institute Comments on Challenge to Federal TikTok Ban | Knight First Amendment Institute"
Bytedance filed its federal lawsuit Tuesday challenging the constitutionality of the "Protecting Americans from Foreign Adversary Controlled Applications Act," a law that requires it specifically to sell off TikTok USA or face a prohibition on the app's distribution in the US. Courts have previously sided with TikTok against executive orders and state laws, but those cases left open the question of what effect a federal law might have. Bytedance filed the suit in the federal appeals court of Washington DC and requested a court order to stop enforcement of the law, pausing the 9-month clock the law gives Bytedance to sell.
The suit claims a violation of the first amendment, unlawful taking of private property, and unconstitutional legislative punishment. Congress is prevented from punishing companies or individuals by legislation, known as the Bill of Attainder clause. TikTok says that divestment is not possible, "not commercially, not technologically, not legally.”
It claims a violation of the first amendment protection against abridgment of freedom of speech and of the press. The Knight Institute on press freedom filed an amicus brief arguing that "the First Amendment protects Americans’ right to access information, ideas, and media from abroad. It also argues that courts should view efforts to restrict that right with “wariness and distrust”—both because these kinds of restrictions have historically been associated with rights-abusing governments, and because the United States’ past experiments with such restrictions are now recalled with “embarrassment and shame.””
TikTok also asserts that the allegations of a national security threat are unproven and if left unproven and left as law would let Congress shut down any publisher say claiming national security without proving it. TikTok notes that the act does not articulate the threat and that statements from members of congress only mentioned hypotheticals, not actual threats.
These are its two strongest defenses and the ones it was expected to use. It's saying the government is shutting down speech without cause. Bytedance is basically calling the government's bluff to demonstrate the security threat to the judge.
The claims of violating the first amendment, the bill of attainder and taking property without cause, rest on whether there is an actual national security threat. If there is, the courts usual give leeway to the government. If there's not the law is likely to get struck down. But this will take awhile and it will go to the Supreme Court no matter what.
The next big thing to watch for is whether the judge grants the request to stop enforcement of the law until the case is resolved.
Keep reading with a 7-day free trial
Subscribe to Tom Merritt Tech Newsletter to keep reading this post and get 7 days of free access to the full post archives.