It is clear that the Court of Appeal will rule against TikTok: Expert

“It’s been very clear from the beginning that the court is profoundly uninterested in extending the law to help TikTok here,” Alan Rozenshtein, a former Justice Department official and current associate professor at the University of Minnesota Law School, told Business Insider. .

Rozenshtein said he believes the appeals court will rule “decisively” and “comprehensively” against TikTok.

“This is pretty much in the government’s bag,” said Rozenshtein, who, like other experts, believes the case will eventually reach the U.S. Supreme Court.

TikTok and a group of content creators filed separate lawsuits in May against the US government, arguing that the law, which President Joe Biden signed in April, violates users’ First Amendment rights.

The law gave TikTok’s parent company, Beijing-based ByteDance, nine months to sell its US operations of the video-sharing platform to a non-Chinese company or be booted from app stores.

Biden signed the law — framed as addressing TikTok’s potential threat to national security — as part of a foreign aid package and bipartisan efforts to distance TikTok from ByteDance.

The main concern of government officials is that TikTok could be forced to hand over data about US users to the Chinese Communist Party. Others worried that TikTok — which said it reaches 170 million Americans each month — could become a propaganda tool for the Chinese government.

U.S. officials have not publicly presented evidence that either concern is happening, though Congress may have seen classified information in briefings that influenced them to vote for the legislation.

TikTok’s lawyer argued that the law “imposes an extraordinary ban on speech”

In his oral arguments on Monday, TikTok attorney Andrew Pincus criticized the law as “unprecedented.”

“Its effect would be staggering,” Pincus said. “For the first time in history, Congress has specifically targeted a specific US speaker, banning his speech and the speech of 170 million Americans.”

Pincus argued the law was unconstitutional and said it “imposes an extraordinary ban on speech based on undetermined future risks.”

“There is no compelling reason for Congress to act as a law enforcement agency and specifically target petitioners,” he said.

The panel of judges at times seemed skeptical of TikTok’s arguments. They pressed Pincus about TikTok’s ties to China and asked whether Congress could ban a foreign country’s ownership of a major U.S. media source if the U.S. is “at war” with the country.

Pincus argued that there would still be a First Amendment problem.

Rozenshtein told Business Insider: “The problem for TikTok is that every time the word China is said, it makes TikTok worse, and the word China has been said many times by the judges.”

Justice Department attorney Daniel Tenny, in his oral arguments, said the data TikTok collects from its users is the same data that is “extremely valuable to a foreign adversary seeking to compromise the security of the United States.”

TikTok has repeatedly denied allegations that it has ties to the Chinese Communist Party.

Sarah Kreps, a political scientist and director of the Technology Policy Institute at Cornell University in New York, told Business Insider that the justices seemed more “skeptical” of TikTok’s arguments, “but they also raised important questions about the First Amendment, foreign influence and standards. of control that I don’t think have been clearly resolved with today’s exchanges.”

“After hearing the oral arguments, I am more convinced that this case will reach the Supreme Court,” Kreps said. “The fundamental challenge that has arisen is that it is difficult to identify a precedent because of how this particular type of technology and ownership arrangement intersects with free speech versus national security.”

Jameel Jaffer, executive director of Columbia University’s Knight First Amendment Institute — which filed a legal brief in support of TikTok — also told Business Insider that he doubts the federal appeals court will be the last stop for the case.

“Today’s argument confirmed what we already knew — that a ruling upholding a ban on TikTok would do profound damage to our democracy and the First Amendment by giving the government broad power to restrict Americans’ right to access information, ideas and media from across abroad,” Jaffer said.

Jaffer added that there are “very good reasons to be concerned about foreign disinformation campaigns and the data collection practices of social media platforms, but the appeals court should make it clear that Congress must address these concerns by passing transparency and privacy laws rather than restrictions. Americans’ First Amendment Rights.”

Support for banning TikTok among Americans has faded over the past year and a half. While one in two US adults supported a TikTok ban in March 2023, now only 32% say they favor it, according to polls by the Pew Research Center.

After the appeals court issues its decision, the case could go before the Supreme Court, where Rozenshtein also predicts that TikTok will not fare well.

“I don’t think TikTok will get any joy,” he said. “For TikTok and its users to win, they must convince judges to ignore the considered judgments of Congress and the executive branch of the intelligence community about a platform whose risks are very real.”

“It’s just a big question,” Rozenshtein said.

TikTok declined to comment for this story.