TikTok Will Challenge Measure Forcing ByteDance to Divest

Biden codified the TikTok divestment bill as part of Congress’ foreign aid package (HR-815). The new measure includes a one-year window in which ByteDance must sell TikTok, allowing the app to continue operating in the U.S. Senators defended the policy in interviews but said it’s unclear whether it will withstand judicial scrutiny.

"This unconstitutional law is a TikTok ban, and we will challenge it in court,” TikTok said. “We believe the facts and the law are clearly on our side, and we will ultimately prevail.” TikTok said it has spent billions of dollars to keep the platform “free from outside influence and manipulation.” The ban will “devastate” 7 million businesses and 170 million American users, the company said.

Free expression on TikTok reflects the same values that make the U.S. a “beacon of freedom,” CEO Shou Chew told users Wednesday. “We aren’t going anywhere. We are confident, and we will keep fighting for your rights in the courts.” He encouraged users to share stories about how the platform impacts their lives and livelihoods.

Legal uncertainty doesn’t mean Congress wasn’t right to move forward, Sen. Mike Rounds, R-N.D., told us. “I don’t know why it wouldn’t” hold up in court, he said. “Stranger things have happened, but it doesn’t mean we shouldn’t try.”

The divestment bill is “smart, targeted, and on sound legal footing,” FCC Commissioner Brendan Carr said in a statement Wednesday. The Communist Party of China bet against the U.S. showing the “resolve necessary to safeguard our national security,” and Congress proved the CCP wrong, he said: The bill “definitively resolves the threats posed by the CCP’s control of TikTok by requiring it to genuinely break ties with Beijing.”

The law is a “marked reversal of longstanding U.S. policy in support of an internet that is open and governed by democratic values,” Open Technology Institute Head Lilian Coral said in a statement Tuesday: Congress used the threat of foreign competition “to advance protectionism in the name of national security” and undercut “Americans' fundamental right to navigate the web freely.” The better approach is for Congress to pass comprehensive privacy legislation and laws holding companies accountable for their algorithms, she said.

Sen. Ron Wyden, D-Ore., an opponent of the measure, said more work is needed to protect privacy across the entire sector. Sen. Jerry Moran, R-Kan., said he would have preferred a comprehensive bill, but that option wasn’t presented. The bill isn’t about general tech policy, said Sen. Brian Schatz, D-Hawaii: “Whatever we think about social media companies, that’s for another day.”

Senate Minority Leader Mitch McConnell, R-Ky., said Wednesday that while he supports the First Amendment and free speech, passing the bill was about protecting national security: “We were all concerned about the control of TikTok by the Chinese.”

“I worry it won’t” withstand a legal challenge, said Sen. John Hickenlooper, D-Colo. “You’re going to have to talk to the lawyers.” However, he said passing the bill as part of the package was fine: “If you’re in a storm, you don’t question which port you can get to. You go to any port in a storm. I think this is a good vehicle.”

“I’m glad to see that Congress finally acted and followed Montana’s lead to ban TikTok,” Montana Attorney General Austin Knudsen (R) said in a statement Wednesday. “The dangerous application is a spy tool for the Chinese Communist Party that poses a serious threat to our national security and puts the privacy of Americans at risk.”

The foreign aid package included the divestment bill (HR-7521) and another measure banning data brokers from transferring sensitive data of Americans to adversarial foreign nations like China (HR-7520) (see 2404220049).

The Biden administration should consider the labor consequences of a divestment and the impact on some 8,000 people working for TikTok in the U.S., Sen. Laphonza Butler, D-Calif., wrote in a letter to Biden on Wednesday. She recommended the administration “engage in a consultative process that balances very serious national security concerns with the labor, economic, and other myriad issues at stake.” She noted the employees in question are mostly concentrated in California and New York.

In remarks about the foreign package Wednesday, Biden did not mention TikTok. Senate Majority Leader Chuck Schumer, D-N.Y., didn’t address the TikTok provisions in remarks either.

NetChoice and the Computer and Communications Industry Association declined comment Wednesday. TikTok is a NetChoice member.