TikTok argued in court on Monday that a US law – which would see it banned unless it is sold by ByteDance – would have a “staggering” impact on the free speech of its US users.
The legislation was introduced due to concerns that US users’ data could be exploited by the Chinese government.
TikTok and ByteDance have consistently denied any connections to Chinese authorities.
The companies filed a lawsuit to block the legislation in early May, asserting that it is unconstitutional and effectively imposes a ban on the speech of its 170 million US users.
A panel of three judges heard TikTok’s arguments at an appeals court in Washington DC on Monday.
“This law imposes extraordinary speech prohibition based on indeterminate future risks,” TikTok and ByteDance’s lawyer Andrew Pincus told the court.
Concerns around China came up early, with Mr Pincus stating that the firm “is not owned” by the country.
“The owner of TikTok is ByteDance Limited, a Cayman Islands holding company,” he said.
But Judge Sri Srinivasan responded that the firm was “subject to Chinese control”.
Mr. Pincus argued that the US government does not accuse TikTok of any wrongdoing, but rather, the firm is facing penalties based on potential future issues.
He contended that the law would constitute an unprecedented ban on a single speaker and that divesting the US arm of the company would be “unfeasible.”
However, Judge Ginsberg challenged this view, stating that the law imposes “an absolute bar on the current arrangement of control” of the company, rather than targeting the company itself.
He also noted that the legislation targets a group of companies controlled by a “foreign adversary,” rather than TikTok as an individual entity.
Constitutional right
Jeffrey Fisher, representing creators concerned by the law, argued that it could infringe upon their constitutional right to collaborate with the editor and publisher of their choice, including TikTok under its current ownership.
TikTok creator Tiffany Cianci, who is not involved in the lawsuit, was livestreaming outside the hearing to provide updates to her viewers.
She informed the BBC that 65,000 people tuned into her TikTok Live broadcast.
“The American people care about this issue,” she said. “They’re tuning in because they’re worried about losing something.”
Ms Cianci added that the platform’s use by politicians in the run-up to the 2024 presidential election felt “hypocritical” and made her doubt the security concerns at the heart of the controversial law.
“If it were dangerous, they wouldn’t be there,” she said.
Department of Justice lawyer Daniel Tenny argued against TikTok’s defence that the code behind its platform is based in the United States.
“There’s really no dispute here that the recommendation engine is maintained, developed, and written by ByteDance rather than TikTok US,” he said.
“It is not expression by Americans in America – it is expression by Chinese engineers in China.”
Mr. Fisher argued that posts on the platform in the US constitute American speech that is “at most curated by a foreign company.”
In addition to concerns about data security, officials and lawmakers have raised alarms about the potential use of TikTok by the Chinese government to spread propaganda to Americans.
However, defenders of free speech rights, as protected by the First Amendment of the US Constitution, argue that enforcing the divest-or-ban law would essentially hand a victory to authoritarian regimes worldwide.
Xiangnong Wang, a staff attorney at Columbia University’s Knight First Amendment Institute, said repressive regimes worldwide may use it to “justify new restrictions on their own citizens’ right to access information, ideas, and media from abroad.”
‘High stakes’
But according to James Lewis, of the Center for Strategic and International Studies in Washington, the law was drafted to withstand judicial scrutiny.
“The substance of the case against TikTok is very strong,” Mr Lewis said.
“The key point is whether the court accepts that requiring divestiture does not regulate speech.”
Mr Lewis added that the courts usually defer to the president on national security matters.
Regardless of how the appeals court rules, most experts agree the case could drag on for months, if not longer.
Gautam Hans, clinical professor of law at Cornell Law School, told the BBC he believes an appeal is likely either way.
The government’s ability to legislate and regulate where national security is concerned is “paramount,” he said.
“They cannot have that limited by the courts.”
Mr. Fisher also noted that the issues are “existential” for TikTok, with the company asserting that it cannot divest and would therefore have no choice but to shut down.
Mike Proulx, vice president and research director at Forrester, stated that the “high stakes” nature of the case suggests it is likely to advance to the US Supreme Court.