The battle over TikTok’s future in the US intensified this week as it filed an emergency motion with a Washington DC appeals court seeking to pause the deadline set by US Congress for owner ByteDance to sell the short form video app. However, the US government has now urged the court to reject that motion, arguing that TikTok’s latest legal manoeuvre simply repeats previously rejected arguments while downplaying serious national security concerns.
TikTok’s filing, “merely rehashes the assertions this court already rejected”, and gives “short shrift to the national-security harms” that Congress, the President and the judiciary “have now credited”, says the government in a court filing.
The government argues that TikTok’s reasons for requesting a deadline delay are not credible, nor are its claims about the minimal impacts delaying the deadline would have.
TikTok filed its emergency motion with the same court that last week rejected its challenge to the sell-or-be-banned law passed by Congress earlier this year, which it says is unconstitutional on free speech grounds.
Under that law, China-based ByteDance must sell TikTok by 19 Jan 2025, otherwise the app will be banned in the US. In its filing on Monday, TikTok asked the DC court to pause the 19 Jan deadline while it continues its fight against the sell-or-be-banned law in the US Supreme Court.
However, the government claims TikTok’s arguments in favour of pausing the deadline are mainly a “rehash” of points the DC court already rejected when considering the platform’s free speech challenge.
The government also notes that both sides knew this case would end up before the Supreme Court - whichever way the DC court ruled - and had therefore already factored that into their timelines.
While getting a Supreme Court ruling before 19 Jan might be a tall order, TikTok can ask the Supreme Court itself to pause the deadline if judges there believe it is necessary to give them more time to review the case.
In its filing the government stresses that Congress passed the law because of national security concerns, primarily that the Chinese government has access to TikTok user data via ByteDance. Therefore measures that would slow down the law from going into effect should be avoided if at all possible.
TikTok downplayed that urgency when asking the DC court to pause the 19 Jan deadline. It argued that the US government has only ever claimed that the Chinese government “could” access TikTok user-data, not that it has or is.
TikTok also pointed out that the law passed by Congress gave ByteDance 270 days to sell the app. That, it argued, suggested that there weren't really urgent national security risks to worry about, because if there were, Congress would have acted immediately.
The US government disagrees. The 270 day window simply reflected “Congress’s considered judgment regarding how best to balance the well-documented national-security interests implicated by continued Chinese control of the TikTok application against the interest in providing time for an orderly divestiture that would allow the application to continue to operate”.
As the legal battle rumbles on, attention is turning to potential political solutions. TikTok has pointed to the incoming Donald Trump administration as a possible source of relief, citing Trump’s previous pledge to “save TikTok”.
Under the current law, Trump could extend the 19 Jan deadline by 90 days as soon as he takes office. However, with Trump not assuming the presidency until the day after the deadline, this creates a precarious situation for TikTok, as it would face a 24-hour period of uncertainty, even if it was confident that Trump would not - as he is prone to do - change his mind.