TikTok v. Garland
TikTok v. Garland
TikTok v. Garland
_________________________________________
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TIKTOK INC., )
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and )
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BYTEDANCE LTD., )
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Petitioners, )
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v. ) No. ________________
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MERRICK B. GARLAND, in his official )
capacity as Attorney General of the )
United States, )
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Respondent. )
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singling out and banning TikTok: a vibrant online forum for protected
and view videos over the Internet. For the first time in history, Congress
Act’s sponsors recognized that reality, and therefore have tried mightily
to depict the law not as a ban at all, but merely a regulation of TikTok’s
including TikTok. They claim that the Act is not a ban because it offers
1 References to “TikTok Inc.” are to the specific U.S. corporate entity that
is a Petitioner in this lawsuit and publishes the TikTok platform in the
1
3. But in reality, there is no choice. The “qualified divestiture”
legally. And certainly not on the 270-day timeline required by the Act.
sponsors of the Act were aware that divestment is not possible. There is
no question: the Act will force a shutdown of TikTok by January 19, 2025,
may no longer own and publish the innovative and unique speech
And for TikTok, any such divestiture would disconnect Americans from
championed a free and open Internet — and the Supreme Court has
Elenis, 600 U.S. 570, 587 (2023). And consistent with the fundamental
Clause and the Fifth Amendment, Congress has never before crafted a
two-tiered speech regime with one set of rules for one named platform,
3
6. In dramatic contrast with past enactments that sought to
extreme measures without a single legislative finding. The Act does not
articulate any threat posed by TikTok nor explain why TikTok should be
misused in the future, without citing specific evidence — even though the
platform has operated prominently in the United States since it was first
evaluating the security of U.S. user data and the risk of foreign
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worked with the government for four years on a voluntary basis to
help safeguard U.S. user data and the integrity of the U.S. TikTok
publisher and speaker (TikTok Inc.), one speech forum (TikTok), and that
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Congress provided every other company — however serious a threat to
TikTok Inc. and ByteDance Ltd. Indeed, for any other company’s
speech is always the same.” Abrams v. United States, 250 U.S. 616, 628
(1919) (Holmes, J., dissenting). Congress failed to do so here, and the Act
should be enjoined.
Jurisdictional Statement
11. Pursuant to Sections 3(a) and 3(b) of the Act, H.R. 815, div. H,
118th Cong., Pub. L. No. 118-50 (April 24, 2024), this Court has original
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and exclusive jurisdiction over this challenge to the constitutionality of
the Act. 2
and make connections with others over the Internet. More than 170
million Americans use TikTok every month, to learn about and share
candidates, and speak out on today’s many pressing issues, all to a global
audience of more than 1 billion users. Many creators also use the
place of business in Culver City, California and offices in New York, San
Jose, Chicago, and Miami, among other locations. TikTok Inc. has
different corporate entities and countries, and the global TikTok business
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which resulted in the issuance of additional equity and the dilution of
Americans.
countries, including the United States. 3 Since its launch, TikTok has
become one of the world’s most popular applications, with over 1 billion
16. Users primarily view content on TikTok through its “For You”
customizes each user’s content feed based on how the user interacts with
more than a dozen other online platforms and software applications for
productivity.
concerns regarding the TikTok platform date back to 2019. At that time,
video-sharing platform.
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19. Petitioners were in the early stages of engaging with CFIUS
the Ban Order, concluding (among other things) that it exceeded the
83 (D.D.C. 2020); TikTok Inc. v. Trump, 507 F. Supp. 3d 92, 112 (D.D.C.
2020); Marland v. Trump, 498 F. Supp. 3d 624, 641 (E.D. Pa. 2020).
11
Amirnazmi, 645 F.3d 564, 585 (3d Cir. 2011) (quotation marks omitted);
see also Kalantari v. NITV, Inc., 352 F.3d 1202, 1205 (9th Cir. 2003)
that President Trump’s efforts to ban TikTok violated the statute and
F. Supp. 3d at 112 n.6; TikTok Inc., 490 F. Supp. 3d at 83 n.3. The courts
President Biden withdrew the Ban Order. See TikTok Inc. v. Biden, No.
20-5302, 2021 WL 3713550 (D.C. Cir. July 20, 2021); TikTok Inc. v.
Biden, No. 20-5381, 2021 WL 3082803 (D.C. Cir. July 14, 2021); Marland
v. Trump, No. 20-3322, 2021 WL 5346749 (3d Cir. July 14, 2021).
August 14, 2020 issued an order under Section 721 of the Defense
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divest from TikTok’s U.S. business and U.S. user data. 85 Fed. Reg.
petitioned this Court for review of the Divestment Order and underlying
CFIUS actions, arguing, among other things, that the government lacked
jurisdiction under the statute. See Petition for Review, TikTok Inc. v.
CFIUS, No. 20-1444 (D.C. Cir. Nov. 10, 2020). That petition was held in
every 60 days since then, most recently on April 22, 2024. Those status
appropriate.” See, e.g., Status Report, TikTok Inc. v. CFIUS, No. 20-1444
about whether Chinese authorities might be able to access U.S. user data
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communicated regularly, often several times a week — including several
protected U.S. user data (as defined in the agreement) would be stored in
Corporation, which would also review and vet the TikTok source code.
repeatedly asked why discussions had ended and how they might be
2023, without providing any justification for why the draft National
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25. Since March 2023, Petitioners have explained to CFIUS, in
divestiture of the U.S. TikTok business from the rest of the integrated
global TikTok platform and business of the sort now required by the Act
is not feasible. CFIUS has never articulated any basis for disagreeing
the reason ByteDance was not divesting was because it was simply
divestiture of the TikTok U.S. business and its severance from the
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27. First, a standalone U.S. TikTok platform would not be
from South Korea, as well as videos created by U.S. creators and enjoyed
where Americans would have an experience detached from the rest of the
global platform and its over 1 billion users. Such a limited pool of content,
in turn, would dramatically undermine the value and viability of the U.S.
TikTok business. 4
infrastructure for running the global TikTok platform and has nothing at
engineers — a team that does not exist and would have no understanding
of the complex code necessary to run the platform. It would take years
for an entirely new set of engineers to gain sufficient familiarity with the
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remotely feasible on anything approaching the 270-day timeframe
29. Third, the Chinese government has made clear that it would
the success of TikTok in the United States. Like the United States,5
agency has reported that under these rules, any sale of recommendation
shortly after President Trump’s August 6, 2020 and August 14, 2020
clearly signaled that it would assert its export control powers with
Sec. 2(a)(1).
33. The first class singles out only one corporate group:
without any finding about why any particular application — much less
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specified countries (i.e., China, Iran, Russia, or North
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issue public notice proposing the determination and then
President must determine that such divestiture would (1) “result in the
other things, any entity organized under the laws of a “foreign adversary
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country,” or any entity in which a foreign person domiciled in a foreign
takes effect 270 days after enactment. Sec. 2(a)(2)(A). The President
may extend this deadline, but only for 90 days maximum, and only if the
executing that qualified divestiture has been produced, and the relevant
are in place.
Petitioners are required to provide, upon request by any U.S. user of any
of their applications, “all the available data related to the account of such
of purpose, Petitioners and the more than 170 million American monthly
communications platforms. 11
39. First, they may have sought to protect U.S. users’ “data
version of the Act, mobile applications, including those that are not
for speech in the United States. The 90-page draft National Security
than those employed by any other widely used online platform in the
industry.
U.S. user data (as defined in the National Security Agreement) would be
Security, and in turn exclude ByteDance and all of its other subsidiaries
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U.S. TikTok business and ByteDance subsidiaries and affiliates,
TikTok Inc. Protected U.S. user data would be stored in the cloud
Security.
43. The draft Agreement would also protect against the concern
and subject to source code review and vetting by Oracle with another
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approved by CFIUS would conduct independent inspections of the
Corporation on the migration of the U.S. platform and protected U.S. user
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Grounds On Which Relief Is Sought
Const., amend. I.
operate because they use the public airwaves, the government cannot,
speech forums.
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emergencies that pose “unusual and extraordinary threat[s]” to the
rights, preferring instead to simply enact a new statute that tries to avoid
with them.
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51. The Act will therefore have the effect of shutting down TikTok
in the United States, a popular forum for free speech and expression used
by over 170 million Americans each month. And the Act will do so based
addressed through far less restrictive and more narrowly tailored means.
Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 570 (1995).
TikTok “is more than a passive receptacle or conduit for news, comment,
Co. v. Tornillo, 418 U.S. 241, 258 (1974); see also Alario v. Knudsen,
32
— F. Supp. 3d —, 2023 WL 8270811, at *6 (D. Mont. Nov. 30, 2023)
NetChoice LLC, No. 22-277 (U.S.), 2023 WL 8600432; see also id. at 18–
19, 25–26.
the Act prohibits. TikTok Inc. uses the TikTok platform to create and
share its own content about issues and current events, including, for
example, its support for small businesses, Earth Day, and literacy and
protected by the First Amendment. See Sorrell v. IMS Health Inc., 564
1210 (11th Cir. 2022), cert. granted, 144 S. Ct. 478 (2023). The Act
cannot for the reasons explained above, TikTok Inc.’s protected speech
through its editorial and publishing activities and through its own
57. For similar reasons, the Act burdens the First Amendment
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since those companies are likewise prohibited from speaking and
content. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 643 (1994).
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. . . push misinformation, disinformation, and propaganda on the
any platform for user-generated content. See infra ¶¶ 82, 87. Similarly,
Sec. 2(g)(2)(B). The Act thus favors speakers that do offer such websites
62. Moreover, the Act singles out TikTok Inc. and other
Ltd. and its subsidiaries are automatically subject to the Act’s draconian
restrictions by fiat, Sec. 2(g)(3)(A). The standard and process that the
Act specifies for every other company likely fall short of what is required
but TikTok Inc. and ByteDance have been singled out for a dramatically
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no judicial review for statutory and constitutional sufficiency based on
the reasons set forth in the presidential determination. The Act also
ByteDance Ltd. and TikTok, and also exempts applications with fewer
subject to strict scrutiny. See United States v. Playboy Ent. Grp., Inc.,
part because of concerns about the content on TikTok. Because the Act
strict scrutiny review is required. Sorrell, 564 U.S. at 565; see also
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line” of cases that government actions that “deny use of a forum in
plaintiffs] to say what they wanted to say” are prior restraints. Se.
restraints on speech and publication are the most serious and the least
Ass’n v. Stuart, 427 U.S. 539, 559 (1976). The Act suppresses speech in
See Backpage.com, LLC v. Dart, 807 F.3d 229 (7th Cir. 2015) (defendant’s
prior restraint); Org. for a Better Austin v. Keefe, 402 U.S. 415, 418–19
All. v. Trump, 488 F. Supp. 3d 912, 926 (N.D. Cal. 2020) (ban on
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65. The Act fails strict scrutiny because it does not further
prove that the restriction [1] furthers a compelling interest and [2] is
U.S. 155, 171 (2015) (numerical alterations added). “If a less restrictive
use that alternative.” Playboy, 529 U.S. at 813. The Act fails on both
counts.
that the Act furthers that interest. To do so, the government “must do
more than simply posit the existence of the disease sought to be cured.”
Turner, 512 U.S. at 664 (plurality op.). Rather, it “must demonstrate that
the recited harms are real, not merely conjectural, and that the
way.” Id.
67. Congress itself has offered nothing to suggest that the TikTok
platform poses the types of risks to data security or the spread of foreign
propaganda that could conceivably justify the Act. The Act is devoid of
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any legislative findings, much less a demonstration of specific harms that
TikTok supposedly poses in either respect, even though the platform was
allowing the CCP ‘to track the locations of Federal employees and
48637, 48637 (Aug. 6, 2020)); id. at 8 (discussing “the possibility that the
the risk that [it] can . . . suppre[ss] statements and news that the PRC
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not enough when First Amendment values are at stake. These risks are
even more speculative given the other ways that the Chinese government
TikTok account for his presidential campaign even after signing the Act
President Biden and Members of Congress undermines the claim that the
21Monica Alba, Sahil Kapur & Scott Wong, Biden Campaign Plans to
Keep Using TikTok Through the Election, NBC News (Apr. 24, 2024),
https://perma.cc/QPQ5-RVAD.
22Tom Norton, These US Lawmakers Voted for TikTok Ban But Use It
Themselves, Newsweek (Apr. 17, 2024), https://perma.cc/AQ5F-N8XQ.
At least one Member created a TikTok account after the Act was enacted.
See https://perma.cc/L3GT-7529.
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Committee Report at 2, the government would still lack a compelling
generated by TikTok users and shared on the platform just because the
71. The Act also offers no support for the idea that other
alone evidence “proving” that those other applications pose such risks.
72. The Act also provides neither support nor explanation for
while providing every other platform, and users of other platforms, with
the door to, among other things, post-hoc arguments that may not have
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been the basis for the government action. The Supreme Court recently
enterprise.” Dep’t of Com. v. New York, 139 S. Ct. 2551, 2576 (2019).
burden on the free speech rights of Petitioners and TikTok users that is
security . . . are concerned,” the government must show that “the evil that
would result from the [restricted speech] is both great and certain and
U.S. 1315, 1317 (1994). To satisfy narrow tailoring, the Act must
Inc. v. FCC, 492 U.S. 115, 126 (1989), and be neither over- nor under-
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inclusive, Ark. Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 232 (1987).
have been involved in negotiations with CFIUS since 2019 over a package
negotiated package are far less restrictive than an outright ban. The
Oracle Corporation store protected U.S. TikTok user data in the United
States, run the TikTok recommendation system for U.S. users, and
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TikTok in the United States in response to specified acts of
77. There are also a wide range of other less restrictive measures
that Congress could have enacted. While many of these measures are
illustrate that the Act does not select the least restrictive means to
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further the national security goals that appear to have motivated it. For
78. Of course, Congress could also have decided not to single out
Act of 2024” — as the very next division of the legislation that contains
the Act. Yet it chose to prohibit only “data broker[s]” from “mak[ing]
Congress could have followed from other jurisdictions. For example, the
alternatives.
80. Congress did not even provide Petitioners with the process
and fact-finding protections that the Act extends to all other companies
which then is subject to judicial review based on the actual reasons for
tailored.
domestic — can pose the same risks to data security and promotion of
time” allowing other types of platforms and applications that may “create
the same problem.” Reed, 576 U.S. at 172. Put differently, the Act’s
83. Most glaringly, the Act applies only to Petitioners and certain
other platforms that allow users to generate and view “text, images,
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equally be posed by personal finance, navigation, fitness, or many other
types of applications.
84. The Act also singles out Petitioners by exempting all other
travel information and reviews.” Sec. 2(g)(2)(B). But the Act does not
under the Act’s broad definition; and (ii) determined by the President to
information and reviews. Yet TikTok and all ByteDance applications are
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85. More broadly, the Act ignores the reality that much of the
including by American companies like Google, Snap, and Meta. The Act
also ignores that foreign countries, including China, can obtain such
arise for each of the many American companies that employ individuals
in China to develop code. The Act, however, does not seek to regulate,
much less prohibit, all online applications offered by companies that have
developers. 28
could not possibly prove — pose the risks the Act apparently seeks to
address.
if strict scrutiny did not apply, the Act would still fail intermediate
speech activity on TikTok at all times, in all places, and in all manners
McCullen v. Coakley, 573 U.S. 464, 486 (2014). This means that it must
information,” Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293
(1984).
90. For many of the same reasons the Act cannot satisfy strict
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91. As discussed supra ¶¶ 67–69, the government has failed to
establish that its apparent data security and propaganda concerns with
address any legitimate concerns. The Act also fails intermediate scrutiny
92. Regardless of the level of scrutiny, the Act violates the First
“long line of Supreme Court cases indicates that such laws are almost
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94. The Act is constitutionally overbroad. Second, the Act is
plainly legitimate sweep.” United States v. Stevens, 559 U.S. 460, 473
(2010) (citation omitted). Here, for example, the government has never
contended that all — or even most — of the content on TikTok (or any
passing any bill of attainder. U.S. Const. art. I § 9, cl. 3 (“No Bill of
designated persons or groups.” United States v. Brown, 381 U.S. 437, 447
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the separation of powers, a general safeguard against legislative exercise
98. The Act inflicts “pains and penalties” that historically have
been associated with bills of attainder. See Nixon v. Adm’r of Gen. Servs.,
433 U.S. 425, 474 (1977). Historically, common “pains and penalties”
forcing ByteDance to shutter them within 270 days or sell on terms that
¶¶ 26‒29. For the same reason, the Act bars Petitioners from operating
Nixon, 433 U.S. at 475–76. The Act transforms Petitioners into a “vilified
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class” by explicitly prohibiting their current and future operations in the
current and future operations in the United States (or those of its
Inc. v. U.S. Dep’t of Homeland Sec., 909 F.3d 446, 456 (D.C. Cir. 2018).
singling out Petitioners for these punitive burdens while at the same time
only via a wholesale divestment, all other companies — even those with
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Chinese ownership and determined by the President to present a
leaving a ready path for any company but those affiliated with
practical purposes, then, the Act applies to just one corporate group — it
104. The Act also violates Petitioners’ rights under the equal
speakers other than Petitioners unless and until the President issues a
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President’s decision, provides support for that decision, and describes the
justification that then will provide the basis for judicial review. The Act
fiat.
so long as they offer at least one application with the “primary purpose”
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had valid interests in protecting U.S. users’ data and controlling what
advanced through the Act, there is no reason why those concerns would
other platforms. Nor is there any rational reason why Congress would
or travel information and reviews,” but changing nothing else about the
situated, the Act denies Petitioners the equal protection of the law.
111. The Takings Clause provides that “private property” shall not
amend. V, cl. 5. The Act does just that by shutting down ByteDance’s
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U.S. businesses or, to the extent any qualified divestiture alternative is
associated with, their and their affiliates’ U.S. operations. These include
not only ByteDance Ltd.’s interest in TikTok Inc. and other U.S.
Kimball Laundry Co. v. United States, 338 U.S. 1, 11–13 (1949) (Takings
United States. And even if a qualified divestiture were feasible (it is not),
any sale could be, at best, completed only at an enormous discount to the
U.S. businesses’ current market value, given the forced sale conditions.
See BFP v. Resol. Tr. Corp., 511 U.S. 531, 537 (1994) (“[M]arket value, as
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114. Because the Act compels ByteDance “to relinquish specific,
effects a per se taking. Horne v. Dep’t of Agric., 576 U.S. 350, 364–65
(2015); Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019 (1992).
a law does not compel the physical invasion of property or deprive the
property of all economically viable use, it still effects a taking “if [it] goes
too far.” Penn. Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). In
determining when a law “goes too far,” courts have typically looked to
New York, 438 U.S. 104, 124 (1978), namely, (a) “[t]he economic impact
of the regulation”; (b) “the extent to which the regulation has interfered
116. The Act does not compensate Petitioners (let alone provide
United States v. Miller, 317 U.S. 369, 373 (1943). Prospective injunctive
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relief is accordingly warranted. See, e.g., Youngstown Sheet & Tube Co.
Requested Relief
relief:
Constitution;
the Act;
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DATED: May 7, 2024 Respectfully submitted,
John E. Hall
Anders Linderot
COVINGTON & BURLING LLP
The New York Times Building
620 Eighth Avenue
New York, New York 10018
Telephone: (212) 841-1000
Email: [email protected]
[email protected]
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