TikTok just had the most important two hours of its life

(CNN) — Who really controls TikTok’s magical algorithm — the US-based company that runs the app or its Chinese parent, ByteDance?

That’s the question that bedeviled a trio of federal judges on Monday charged with deciding whether to allow the implementation of a law that could ultimately result in TikTok being banned for all Americans.

After more than two hours of oral argument between TikTok and a group of content creators on one side, and the US government on the other, it remains uncertain how the judges may rule. Today wasn’t the slam dunk that TikTok needed as all three judges asked some very skeptical questions about the ByteDance relationship, but they didn’t let the government off easy, either.

Struggling to find historical and metaphorical precedent, the judges at a federal appeals court in Washington grappled with how TikTok’s foreign ownership affects its constitutional rights under US law.

They leaned on analogies about terrorist propaganda and hypotheticals about a possible shooting war involving the United States and China. They looked to a past case about communist propaganda delivered through the US Postal Service. And some of the Supreme Court’s most recent landmark decisions about online speech, issued just this year, made an appearance, too.

If the law in question targeted only US-based companies, “there’s no doubt that would be a huge First Amendment concern,” said Sri Srinivasan, chief judge of the US Court of Appeals for the District of Columbia Circuit, citing a pair of cases decided by the Supreme Court this summer.

But, he added, that isn’t the situation here. Instead, Congress passed a law that targets a US company’s foreign owners and their influence over the algorithm that 170 million Americans use to watch videos about sports, fashion and politics.

“It’s just that the curation is happening abroad,” he said to Daniel Tenny, a lawyer representing the US government.

“The core point we’re making is one they’ve conceded,” Tenny told the court, “which is that [TikTok’s] code is made in China.”

Attorneys for TikTok pushed back, saying that only some of the code that powers TikTok originates from China and that a great deal of TikTok’s curation reflects decisions made in the United States and amounts to expressive speech by TikTok itself — which the law would infringe on if upheld, they said.

The stakes of the case

Monday’s sprawling debate over TikTok’s algorithm and whether or not the Chinese government could manipulate it to sow chaos and disinformation to an unsuspecting public, will resolve a legal challenge to a law that the company claims could shut down TikTok virtually overnight and potentially reshape the government’s powers in relation to speech on all foreign-owned platforms deemed to be a national security risk.

If TikTok is successful, it could win a decision that blocks the legislation. But if it fails, the company will be required to find a new owner by mid-January, or else be prohibited from the devices of all Americans.

What began as a scheduled one-hour debate between TikTok and some of its content creators on one side, and the US government on the other, stretched into a lengthy back-and-forth at the court, with the judgesasking tough questions to determine where TikTok’s US operations end and ByteDance’s really begins.

The exchange could well be the most significant of TikTok’s US existence. The company is fighting for survival in the face of a bipartisan push to force a sale of TikTok to non-Chinese owners, which may effectively end the app as we currently know it.

In addition to Srinivasan, an Obama appointee, hearing the case were Judge Neomi Rao, who was appointed by former President Donald Trump, and Judge Douglas Ginsburg, a Reagan appointee.

Both Rao and Ginsburg appeared to push hard against TikTok’s arguments, with Ginsburg at one point dismissing claims about the legislation’s allegedly sweeping breadth as a “blinkered view.” The law does not open up possible bans against all foreign-owned publications or platforms, he said, as it only targets companies linked to specific adversary nations such as China.

“We’re not talking about banning Tocqueville,” Rao said, referring to Alexis de Tocqueville, the French author of the historical text “Democracy in America.”

But a decision to restrict TikTok in the United States would still harm American users, TikTok and the coalition of content creators argued. Courts have historically protected Americans’ right to listen to foreign views, even if it is propaganda.

“Congress didn’t do any of the things the First Amendment requires,” Andrew Pincus, an attorney representing TikTok, told the court. He added: “The government’s solution to foreign propaganda, in every context, [has been] disclosure, not a ban.”

After pressuring TikTok, Srinivasan was equally hard on the US government. At one point, he asked Tenny about the law’s practical impact on everyday Americans.

The concern, he said, is “about the speech consequences on US consumers.”

Tenny, the Justice Department attorney, described the law’s impact on Americans’ First Amendment rights as “incidental” to the legislation’s main purpose, which focuses on curbing foreign influence over TikTok’s algorithm.

It’s not clear when the court could reach a decision on the legislation. But the law sets out a deadline of Jan. 19 for TikTok, so it is likely the court may rule before then.

US fear over China

Fast-tracked through Congress this spring with uncommon speed, the legislation is a US response to fears that TikTok’s China ties could allow that country’s government to access American users’ app data, such as which videos they have watched, liked, shared or searched for.

The measure has become a symbol of bipartisan opposition to China. But for TikTok’s supporters, including some of its most prominent content creators, the law smacks of racism and anti-China hysteria. They argue it does little to address other, potentially even more sensitive, sources of data freely available on commercial marketplaces.

The outcome of the case won’t just determine the fate of TikTok in the United States. It could also have ripple effects for the way courts interpret the First Amendment — which guarantees against the government prohibiting freedom of expression — and its relationship to digital speech and online platforms writ large.

TikTok argues the potential ban violates the First Amendment because it stifles the ability for its US users to express themselves and to access information. And it alleges the law is unconstitutionally extreme when the government had other options to address fears about TikTok’s links to China.

Court filings show that TikTok and US national security officials had hammered out a draft proposal to address the security concerns. That agreement included the ability for the US government to shut down TikTok if it violated the proposed deal. Some of the deal’s provisions TikTok has already publicly implemented as part of an initiative called Project Texas, which involves moving US user data onto servers controlled by the American tech giant Oracle and erecting additional organizational barriers between TikTok and ByteDance.

But, TikTok claims, US officials abruptly abandoned the plan with no explanation. (The US government has subsequently described the plan in its court filings as “inadequate” because officials feared it would be hard to detect whether TikTok were violating the agreement.)

TikTok has also claimed that it is technologically impossible to separate its app from its parent company. For starters, it said in a court filing, the TikTok app depends on software code that’s built by ByteDance, and there is no way to simply copy that code to another company with any expectation that it will run.

For another, the company argues, the Chinese government most likely won’t allow TikTok’s recommendation algorithm to be sold to a non-Chinese company. The recommendation engine is TikTok’s secret sauce and what powers its popularity; without it, the app loses its most distinctive feature.

Last year, the Chinese government said it would “firmly” oppose a potential sale of TikTok from ByteDance, following new export controls the country announced that affect the transfer of certain software algorithms.

TikTok has portrayed the US law as a sweeping congressional power grab that threatens all Americans’ speech rights.

“If Congress can do this,” the company wrote in its filings, “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.”

‘Speculative concerns,’ TikTok says

Finally, TikTok claims, the US government has never proven that the Chinese government has exploited US user data to justify the law.

“Even the statements by individual Members of Congress and a congressional committee report merely indicate concern about the hypothetical possibility that TikTok could be misused in the future, without citing specific evidence — even though the platform has operated prominently in the United States since it was first launched in 2017,” the company wrote. “Those speculative concerns fall far short of what is required when First Amendment rights are at stake.”

The US government has argued in its own filings that lawmakers are free to take action “even if all of the threatened harms have not yet broadly materialized or been detected.”

The Chinese government has the incentive and the ability to pressure ByteDance to hand over TikTok user data, the Biden administration has said, adding that the information could be useful for intelligence purposes or for manipulating the public through disinformation campaigns.

The United States, for its part, also routinely requests user data from social media companies. But there are typically checks and balances on the government, such as laws limiting what intelligence officials can do with data about US citizens or, for domestic law enforcement, requirements that authorities obtain a court order in exchange for user data — orders that tech companies can and often do challenge, even if they can’t always disclose it.

“TikTok’s parent company and recommendation algorithm are based in China,” the Justice Department wrote in a court brief, “giving rise to the risk that a foreign adversary will wield TikTok’s enormous power to advance its own interests, to the detriment of U.S. national security.”

The US government has also insisted the law is not a ban as it technically provides a way for TikTok to avoid one by simply finding a new owner within about six months.

Independent cybersecurity experts have said that the risk of Chinese spying through TikTok sounds plausible but remains unproven.

China’s intelligence laws require companies with a presence there to help with that country’s intelligence objectives. TikTok does not operate in China, but ByteDance does, meaning it is subject to China’s laws — and the Chinese government holds a board seat on ByteDance’s local Chinese subsidiary. The question is whether all that amounts to enough influence over ByteDance and TikTok to gain access to US TikTok users’ data, in spite of the guardrails promised by Project Texas.

All eyes on TikTok

The case has attracted immense attention, prompting friend-of-the-court briefs from more than a dozen US states, the House select committee on China that drafted the law, former US national security officials, business and civil rights groups, and a former chairman of the Federal Communications Commission.

The law in question “plainly raises the issue of political bias and motivation, singling out TikTok because of its foreign ownership even as other major social media platforms raise similar privacy and content-moderation issues,” wrote a coalition of digital rights groups in a filing.

But former national security officials wrote that TikTok user data, if combined with other information Beijing has collected through hacks and leaks, could be a potent intelligence risk.

The Chinese government, wrote the group that includes former National Cyber Director Chris Inglis, “can exploit this massive trove of sensitive data to power sophisticated artificial intelligence (AI) capabilities that can then be used to identify Americans for intelligence collection, to conduct advanced electronic and human intelligence operations, and may even be weaponized to undermine the political and economic stability of the United States.”

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