TikTok is about to get its day in court
The Justice Department’s legal case for a forced sale includes classified evidence no one can see.
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The Justice Department’s legal case for a forced sale includes classified evidence no one can see.
Next week, a court will hear arguments about whether the US government can ban TikTok, based on evidence it doesn’t want anyone — including the social media company — to see.
On September 16th, the Court of Appeals for the District of Columbia will hear oral arguments for TikTok v. Garland, TikTok’s First Amendment challenge to legislation that it claims amounts to a ban. It’s a fight not just about free speech but whether the Department of Justice can make a case using classified material that its opponent can’t review or argue against. The government argues TikTok is a clear national security threat but says that revealing why would be a threat, too.
“I think the courts are going to tread very carefully here,” Matt Schettenhelm, a senior litigation analyst at Bloomberg Intelligence covering tech and telecom, told The Verge. “Especially in a First Amendment case like this, where it’s effectively banning one of our leading platforms for free speech in the country, the idea that you’re going to do it for secret reasons that you don’t even tell the company itself, that is going to be cause for concern for the judges.”
The DOJ’s case against TikTok
TikTok’s suit stems from a law signed by President Joe Biden back in April. The law requires TikTok’s parent company, ByteDance, to divest it within nine months to a non-Chinese company; if it fails, the app would be effectively banned in the US — unless the president grants it a few months to get a deal done. TikTok has argued the law would unconstitutionally “force a shutdown,” accusing the government of taking “the unprecedented step of expressly singling out and banning TikTok.”
In filings first submitted on July 28th, the government laid out its defense, making a series of declarations about TikTok’s risks. The claims relied on dozens of pages of redacted classified material. The DOJ insisted it wasn’t “trying to litigate in secret,” but, citing national security concerns, it asked to file the classified material ex parte, meaning only one side (and the panel of judges) would be able to see it.
We obviously don’t know exactly what’s in these documents, but the partially redacted filings give us some hints. They focus largely on the potential that the Chinese government could compel ByteDance to hand over the data of US users — or that it could coerce the company into using TikTok’s algorithm to push specific content onto US users.
The government argues that the national security risks posed by TikTok are so significant that they override First Amendment claims. The DOJ said Congress decided to ban TikTok based on “extensive information — including substantial classified information — on the national-security risk” of allowing TikTok to remain operational in the US.
One of the documents is a declaration from Casey Blackburn, an assistant director of national intelligence. Blackburn writes that there is “no information” that the Chinese government has used TikTok for “malign foreign influence targeting US persons” or the “collection of sensitive data of US persons.” But he says there is “a risk” of it happening in the future.