TikTok has promised to sue over a possible US ban. What is the legal approach? -bloggerheart

New York — Legislation that would force TikTok's parent company to sell the video-sharing platform or face a ban in the US got President Joe Biden's official approval on Wednesday. But there may be a tough fight in the court for the newly made law.

Critics of the ultimatum to sell or ban argue that it violates the First Amendment rights of TikTok users. The app's China-based owner, ByteDance, has already promised to sue, calling the measure unconstitutional.

But success of a court challenge is not guaranteed. Opponents of the law, including advocacy organizations like the American Civil Liberties Union, say the government doesn't come close to justifying banning TikTok, while others say national-security claims may still hold. .

For years, lawmakers on both sides of the aisle have expressed concerns that Chinese authorities could force ByteDance to hand over US user data, or influence Americans by suppressing or promoting certain content on TikTok. The US has not yet provided public evidence to support those claims, but some legal experts believe political pressure has increased.

If upheld, legal experts also stress that the legislation could set a precedent with wide-ranging implications for digital media in the US.

Here's what you need to know.

This is the central question. TikTok and opponents of the legislation have argued that the ban would violate the First Amendment rights of the social media platform's 170 million American users.

Patrick Toomey, deputy director of the ACLU's National Security Project, said a ban on TikTok would “hamper free expression and restrict public access” to a platform that has become a central source of information sharing.

Elettra Bietti, an assistant professor of law and computer science at Northeastern University, says key questions will be whether the law interferes with the overall content of speech on TikTok, as content-based restrictions meet a higher level of scrutiny.

ByteDance had not officially filed the lawsuit as of late Wednesday, but Beatty said he expected the company's challenge to focus primarily on whether the ban violates these broader free-speech rights. He said additional lawsuits could also arise involving TikTok's “commercial actors” such as businesses and influencers who make their living on the platform.

TikTok is expressing confidence about the prospects of its planned challenge.

“Rest assured, we're not going anywhere,” TikTok CEO Shaw Chew said in a video response posted on XWednesday. “The facts and the Constitution are on our side, and we hope to prevail again.”

Toomey also said he is optimistic about the chances of TikTok being able to stop the move in court, noting that both users and the company have “extremely strong” First Amendment claims.

“Many calls for a complete ban on TikTok in the US are based on political gain and anti-China sentiment,” Toomey said. “And to date, these moves to ban TikTok have not been remotely supported by solid public evidence.”

Still, it is hard to predict the future of any lawsuit, especially for a case like this. And from a legal perspective, legal experts say it can be difficult to cite political motivations as grounds for invalidating a law, even if they are well documented.

Gus Hurwitz, a senior fellow at the University of Pennsylvania, said the fight could go on for some time, with an appeal likely going all the way to the Supreme Court, which would likely uphold the law because of its current structure. Carey Law School.

TikTok's legal challenge will not go without a fight. The government will likely respond with national-security claims, which were already prominently cited as the legislation made its way through Congress.

Toomey says the government hasn't met the high standard required to prove imminent national-security risks, but some other legal experts say it's still a strong card to play.

“One of the unfortunate and really disappointing things about national-security legislation is that it turns out to be a trump card,” Hurwitz said. “Once national-security issues come up, they will either work successfully or they won't.”

Hurwitz said he believes there are legitimate national-security arguments that can be brought here. A national security argument can be made because it is a federal measure, he said. This differentiates this scenario from previously unsuccessful state-level legislation seeking to ban TikTok, such as Montana.

But national-security arguments also call into question why TikTok is getting specific scrutiny.

“Personally, I believe what TikTok does is no different than other US-based companies,” Beattie said, pointing to tech giants from Google to Amazon. “The question is, 'Why ban TikTok and not the activities and surveillance done by other companies in the United States?'

Still, legal experts note that the future could have consequences beyond TikTok.

The measure was passed as part of a larger $95 billion package that provides aid to Ukraine and Israel. The package also includes a provision that makes it illegal for data brokers to sell or rent “personally identifiable sensitive data” to North Korea, China, Russia, Iran or entities in those countries.

It has faced some opposition, including from the ACLU, which said the language is written too broadly and could impact journalists and others who publish personal information.

“The real cause for concern is that this law will not stop TikTok from being used,” Toomey said. “Given that point and the bigger picture, banning TikTok or forcing its sale would be a devastating blow to the U.S. government’s decades of work promoting an open and secure global internet.”