By Drew Harwell, The Washington PostFILE - The icon for the video sharing TikTok app is seen on a smartphone, Feb. 28, 2023, in Marple Township, Pa. The Federal Trade Commission has referred a complaint against TikTok and its parent company, ByteDance, to the Department of Justice.
The company included a roughly 100-page draft national security agreement it offered to the government in August 2022 in hopes of resolving its concerns - a proposal that would have given federal officials extraordinary power to shape and oversee TikTok’s U.S. operation, including a nationwide kill switch the government could deploy if they believed the app remained a threat.
A group of TikTok creators also filed a legal challenge last month, with funding from TikTok; the cases have since been consolidated. In a legal brief Thursday, the creators - a cookie baker in Memphis, a skin-care entrepreneur in Atlanta, a football coach in North Dakota - said the law would be a “devastating blow” to their online communities and livelihoods.
While the company had stayed silent to protect the negotiation’s confidentiality agreements, the attorneys argued, it had been repeatedly undercut by “problematic and damaging” comments from administration officials and leaks to the media. The law, the brief added, suffered from a “fatal” constitutional flaw: It singles out TikTok by name while affording other “foreign adversary controlled applications” a process for review, which TikTok called a “unique, two-tiered system of speech regulation.”
Severing TikTok’s U.S. app from the ByteDance engineers in China who built it and the global sales, marketing and creator-relations teams who maintain it would dismantle its operations into a “shell of its former self,” Because the sale-or-ban law set the appeals court as the “exclusive jurisdiction” for any challenge, the brief offers TikTok one of its only chances to defend itself in court. Unlike in district court, where a fact-finding process involves submitting evidence and calling witnesses, the appeals judges review legal briefs and weigh in on constitutional arguments, and the only way to overturn their ruling is through the Supreme Court.
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