Federal Appeals Court Upholds Law That Could Lead to TikTok Ban

TikTok took a hit in Washington, D.C., Friday, as the U.S. Court of Appeals for the Federal Circuit upheld a law that requires Chinese-based parent company ByteDance to sell the popular video-sharing social platform by Jan. 19 or see the application banned in the U.S.

The likely next step for TikTok and ByteDance is an appeal to the full Appeals Court panel or the U.S. Supreme Court.

Current President Joe Biden has the power to grant a 90-day extension, at which point the ball would move onto the court of President-elect Donald Trump, who takes office Jan. 20.

It was Trump who initiated the idea of a TikTok ban in the first place, telling reporters aboard Air Force One in July 2020 that he was concerned about its Chinese ownership.

However, after Biden took office, he signed an executive order in June 2021 revoking his predecessor’s order to ban TikTok, messaging app WeChat, and eight other communications and financial technology software applications with Chinese ties.

The goodwill from the Biden administration did not last, as the House passed a bipartisan bill in March forcing the divestiture or sale, with the Senate following suit in April.

Eight TikTok creators entered the fray in May, filing a suit claiming that the potential ban violated their First Amendment rights.

And the two sides presented their cases before the Appeals Court in September.

The Department of Justice argued that TikTok poses a national security threat due to the personal data it collects from users and the opportunity for China to exploit that data, while TikTok and ByteDance countered that the law is unconstitutional and claimed that it has never and will never share data from U.S. users.

Judges Douglas Ginsburg, Neomi Rao, and Sri Srinivasan presided over the case, and Ginsburg wrote in the opinion, as reported by Reuters, that the law “was carefully crafted to deal only with control by a foreign adversary, and it was part of a broader effort to counter a well-substantiated national security threat posed by the People’s Republic of China.”

Srinivasan acknowledged the magnitude of the potential TikTok ban in a concurring opinion, as reported by Reuters, writing, “170 million Americans use TikTok to create and view all sorts of free expression and engage with one another and the world. And yet, in part precisely because of the platform’s expansive reach, Congress and multiple presidents determined that divesting it from (China’s) control is essential to protect our national security. Because the record reflects that Congress’ decision was considered, consistent with longstanding regulatory practice, and devoid of an institutional aim to suppress particular messages or ideas, we are not in a position to set it aside.”