Illustration: Lindsey Bailey/Axios
TikTok's suit against the government is drawing a sharp response from lawmakers and critics who say it will do little to convince them the app isn't a threat.
Why it matters: Getting the law thrown out of court is TikTok's whole game. But even if its bid is successful, lawmakers won't ease up the pressure.
What they're saying: "It is telling that TikTok would rather spend its time, money and effort fighting in court than solving the problem by breaking up with the CCP," new House Select China Committee Chair John Moolenaar said this week. "I'm confident that our legislation will be upheld."
- Sen. Mark Warner told Axios he wasn't surprised by the lawsuit: "I think the legal standing is strong, and I'd love to see those American investors in ByteDance actually support a transaction.
- "There's a lot of creativity on TikTok that should be continued, just not under the control of the Communist Party of China."
TikTok has a strong First Amendment case when it argues that the speech of app users would be restricted, according to Saurabh Vishnubhakat, a law professor at Cardozo Law School.
- Users "would be deprived of a platform that they already had access to and have come to rely on," he said. "I'm pretty skeptical of any sort of congressional defense of the First Amendment rights of users being respected here."
- Vishnubhakat also said the bill's authors did not provide sufficient evidence of a national security threat outweighing First Amendment rights, making the government's argument in court tougher.
- "Without legislative findings of fact, that charge that you're overcorrecting a problem that you haven't even proven really exists, is a sort of one-two punch that the law is susceptible to."
Friction point: TikTok's own lawsuit states that "the Chinese government has made clear that it would not permit a divestment of the recommendation engine that is a key to the success of TikTok in the United States."
- Some analysts view this as evidence that TikTok is too entwined with the Chinese government and therefore poses a national security threat.
- TikTok has argued that this does not mean the Chinese government asks it for data.
The big picture: Both countries are increasingly looking at software regulation in the name of protecting national security, and some analysts worry it will lead to a tit-for-tat confrontation that hurts U.S. companies.
- The U.S. has its own export controls on American companies' algorithms to China, particularly those the government deems crucial to national security.
- The Biden administration is now looking to limit China's access to AI software like ChatGPT's, which is considered dual use for national security and consumer applications.
- "It just feeds into this overall narrative that we're closing off our country to China. We're being the confrontational ones. We're the ones separating ourselves from the world," said Mercatus Center's Matt Mittelsteadt.
Organizations that pushed for the ban behind the scenes, like the Hill and Valley Forum and Palantir, think U.S. firms should be more concerned about national security and that that should drive their business decisions.
- Former Rep. Mike Gallagher, who co-wrote the House bill with Rep. Raja Krishnamoorthi and plans to work for Palantir, told Axios: "The genesis of the bill was [lawmakers] wanting to tackle a serious national security threat posed by TikTok. It wasn't subject to any outside influence.
- "The arguments being made against TikTok go back four years … long before any outsiders tried to claim credit for the bill. It was a partnership between Democrats, Republicans, House, Senate and the executive branch."
