Op-Ed: Joel Thayer: TikTok goes the clock for divestment

With no true speech interest to overcome its national security concerns and the court taking TikTok’s proposed NSA off the table, ByteDance should be preparing its divestiture papers.

2024 was a big year for social media litigation. Leveraging their defense under the First Amendment, social media companies have been wildly successful in vacating laws that dare apply any form of restrictions to their curation practices — even in the context of protecting kids.

TikTok itself was successful in defending against Montana’s law to ban the app within the state given its data collection practices and clear relationship with the Chinese government. Even though a federal district court agreed that Montana’s measure likely regulates conduct, not speech, it nonetheless found the First Amendment "implicated" in Montana's law. The judge reasoned that the law violated the First Amendment because Montana supposedly has no substantial interest in protecting its citizens against foreign espionage and the law doesn't leave "ample alternative channels for communication."

But TikTok’s legal challenge to Congress’s Protecting Americans from Foreign Adversary Controlled Applications Act changed that.

Similar to Montana’s, the law requires Chinese tech company ByteDance to divest its ownership interest with the social media app TikTok. If it doesn’t, then TikTok will face an all-out ban in the U.S.

TikTok sought to invalidate the law in the D.C. Circuit by asserting, among others, a (you guessed it) First Amendment defense. Specifically, TikTok argues that the law tramples on its First Amendment rights as a speaker.

But on Friday, the D.C. Circuit put the kibosh on its argument altogether. The Court wrote that "the First Amendment exists to protect free speech in the United States.” The Court went on saying that “[h]ere the Government acted solely to protect that freedom from a foreign adversary nation and to limit that adversary’s ability to gather data on people in the United States." In short, the First Amendment is a shield to which only we can avail ourselves, not for adversarial governments to use as a sword to do us harm.

Candidly, TikTok’s First Amendment plea should have been dead on arrival at oral argument. TikTok US (a U.S. company) admitted in open court that it does not control the algorithm. Instead, ByteDance (a Chinese company) controls the algorithm. It gets worse: Chinese engineers get to change the algorithm, directly impacting what is shown in the U.S., without consulting with TikTok US; indeed, TikTok US doesn’t even get to review those changes before they are implemented. In other words, TikTok US isn’t curating content or speaking on the app — China is.

And that fact certainly played a role in the Court’s decision. Judge Douglas Ginsburg wrote that “TikTok never squarely denies that it has ever manipulated content on the TikTok platform at the direction of the PRC. Its silence on this point is striking given that ‘the Intelligence Community’s concern is grounded in the actions ByteDance and TikTok have already taken overseas.’”

Strangely, the Court still held that there was some speech implicated due to the various reviews occurring in the U.S., but that wasn’t enough to overcome the government’s national security interest.

Let’s revisit the national security threat TikTok poses. The House of Representatives’s report established a direct link to ByteDance and TikTok. It states that “the Secretary of ByteDance Ltd.’s CCP committee, Zhang Fuping, also serves as ByteDance Ltd.'s Editor-in-Chief and Vice President and has vowed that the CCP committee would “take the lead'' across “all product lines and business lines,'' which includes TikTok.”

Worse, under penalty of perjury in a separate case, a former head of engineering at ByteDance in the United States, Yintao “Roger” Yu, explained that the CCP accessed TikTok’s app stores’ data via ByteDance’s so-called “god credential” to obtain “users’ direct messages, their search histories, the content viewed by the users, and duration.”

You’d think that would be it, but no.

TikTok had one last ditch effort: have the D.C. Circuit overturn Congress’s determination as a national security threat due to its proposed National Security Agreement (NSA).

Given these facts, TikTok’s case rested on whether its proposed NSA, also known as its “Project Texas,” was sufficient to quell the government’s concern and was, indeed, the “least restrictive means” to accomplish that goal. For the unfamiliar, TikTok’s NSA proposal is a Kafkaesque arrangement to have its data housed and evaluated by Oracle in the U.S.

But that defense, too, fell flat.

The Court went as far as to say, “TikTok does not present any truly material dispute of fact” that would compel the Court to overturn the government’s determination that the NSA is insufficient. The Court doubled down when holding that, “even if we resolved every supposed factual dispute in TikTok’s favor, the result would be the same.” In sum, Project Texas is not a defense either.

So with no true speech interest to overcome its national security concerns and the court taking TikTok’s proposed NSA off the table, ByteDance should be preparing its divestiture papers.

Joel Thayer is the president of the Digital Progress Institute and a tech and telecom attorney based in Washington, D.C.