As threatened, TikTok, Inc. and ByteDance, Ltd., the owner of the TikTok app, filed suit against the United States on May 7, 2024, alleging that the Protecting Americans From Foreign Adversary Controlled Applications Act (“the Act”) is unconstitutional and is a violation of the free speech of 170 million Americans who use the app. 

The 77-page petition, filed in the U. S. Court of Appeals for the D.C. Circuit, alleges that ByteDance is unable to divest TikTok, that such “is simply not possible: not commercially, not technologically, not legally. And certainly not on the 270 -day timeline required by the Act.”

The petitioners allege that divesting the U.S. TikTok platform is not commercially viable and would “dramatically undermine the value and viability of the U.S. TikTok business.” In addition, the petitioners allege that moving TikTok’s source code from ByteDance to a new owner would require that the code be moved to an alternative team of engineers, which would “take years.” They also allege that the Chinese government will not permit a divestment of the algorithms that are at the heart of TikTok as “the Chinese government clearly signaled that it would assert its export control powers with respect to any attempt to sever TikTok’s operations from ByteDance,” That affirmation alone is worthy of why the Act is so important for national security. The Chinese government will not allow the algorithms being used on the TikTok platform, which is used to suggest a review of content and are arguably manipulative, to be divested and, therefore, out of its potential purview and control.

The petition alleges that the Act is a violation of the First Amendment, is an unconstitutional bill of attainder, a violation of Article I of the U.S. Constitution, and a violation of the Fifth Amendment’s Due Process and Takings Clauses. The relief requested includes a declaratory judgment that the Act violates the U.S. Constitution, an order enjoining the Attorney General from enforcing the Act, and a judgment in favor of petitioners.

For TikTok users, the law is applicable unless a Court rules otherwise. Transitioning away from TikTok while the issue moves through litigation is one way to respond to the Act and the subsequent dispute. There are other social media platforms to use that are not deemed a national security threat by the federal government.

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