TikTok escalated its legal battle against the Biden administration on Thursday, filing a lawsuit challenging a law that could ban the app in the United States. The company argued that such a ban would leave U.S. users isolated on a “content island,” disconnected from the global TikTok community.
In a detailed court filing, TikTok revealed the text of a previously undisclosed draft agreement with the U.S. government. This agreement, according to TikTok, would have addressed national security concerns but was abandoned in favor of more restrictive legislation that the company claims violates First Amendment rights.
This lawsuit is a crucial step in a high-stakes legal case that not only threatens the future of an app used by 170 million Americans but also raises significant questions about the First Amendment’s application to digital platforms. The Justice Department has declined to comment on the matter.
TikTok has repeatedly stated that divestiture by its Chinese parent company, ByteDance, is impossible—technologically, commercially, and legally—and cannot be accomplished by the January 2025 deadline set by the new law signed by President Joe Biden.
“Even if divestiture were possible, TikTok in the United States would become a mere shadow of its former self, stripped of the innovative technology that personalizes content for users,” the company argued in its brief. “This would also isolate American users, preventing them from engaging with the global TikTok community.”
TikTok contended that the law prevents the type of data-sharing agreements needed to display international content to U.S. users, effectively creating a digital divide.
Supporting this argument, a group of TikTok content creators filed a related legal brief, claiming that the law restricts their ability to choose their platforms of expression and infringes on their First Amendment right to receive speech from others. This group includes a football coach, a sexual assault survivor advocate, and a U.S. Air Force veteran.
A key element of TikTok’s case is the draft agreement with the Committee on Foreign Investment in the United States (CFIUS), which reviews the national security implications of foreign investments. TikTok asserted that this agreement offered a less restrictive solution to the government’s security concerns, avoiding the need for a ban or forced divestiture.
The filing detailed how, despite extensive negotiations and numerous meetings with U.S. officials, the proposed agreement was never finalized. TikTok claimed that after months of silence, CFIUS informed them in March 2023 that “senior government officials” demanded divestiture without explaining why the agreement was insufficient. TikTok’s requests for further meetings with senior officials went unanswered.
For years, U.S. officials have warned that the Chinese government could access TikTok user data through ByteDance. While the Trump administration’s attempt to ban TikTok via executive order was blocked by legal challenges, Biden’s recent legislation has revived these concerns. Notably, Trump later changed his stance, arguing that a ban would benefit TikTok’s rival, Meta.
Cybersecurity experts acknowledge the potential risk posed by Chinese laws but note that China can acquire similar data through other means, such as purchasing it on the open market. Crucially, U.S. officials have not publicly provided evidence that China has accessed TikTok user data. However, they caution that such data could be used for propaganda or intelligence purposes, and members of Congress have received classified briefings on the app’s potential risks.
TikTok has consistently denied giving user data to the Chinese government and criticized the congressional briefings as part of a flawed and hasty legislative process.
In its filing, TikTok included a comprehensive appendix with the full 103-page draft agreement, known as Project Texas. This plan aims to separate U.S. user data from TikTok’s global operations and includes provisions for U.S. government oversight, such as the ability to temporarily halt or shut down the app if compliance issues arise.
TikTok reported spending $2 billion to voluntarily implement Project Texas. Additionally, a declaration from Christopher Simkins, a third-party expert and former CFIUS official, endorsed the draft agreement as robust and capable of reducing TikTok’s national security risks to a “LOW level.”
As this legal battle progresses, its outcome will not only shape the future of TikTok in the United States but also influence the broader regulatory landscape for digital platforms and the balance between national security and free speech.
