The fate of the wildly popular TikTok app hangs in the balance after the company tried to persuade a Washington appeals court Monday to halt a fast-approaching ban on the platform’s use across America. A deep legal discussion over the potential ban’s constitutionality Monday morning offered no clear answers, leaving the company’s fate uncertain even as it nears a Jan. 19 deadline to divest from Chinese ownership, with a ban coming into place if it hasn’t done so by that date. The political backdrop is striking: Vice President Kamala Harris and former president Donald Trump are both seizing on the viral short-video platform to vie for young voters, even though both the Trump and Biden administrations backed banning it. In Monday morning’s hearing in federal D.C. Court of Appeals, the panel of three judges — Chief Judge Sri Srinivasan and Judges Neomi Rao and Douglas H. Ginsburg — grilled TikTok attorney Andrew Pincus on why he thought the company’s right to free speech outweighed national security concerns over its ownership, citing wartime precedents of the United States curbing the broadcast of foreign propaganda into America. The judges pressed Pincus on a hypothetical scenario involving a war between the United States and a foreign country, asking whether Congress would be within its right to bar “the enemy’s ownership of a major media source” — in line with Congress’s designation of TikTok and other China-based apps as controlled by a “foreign adversary.” They also cited the government’s concern over how ByteDance developers in China could curate TikTok’s recommendation algorithm for American users. Pincus argued that ByteDance, TikTok’s parent company in China, is a private company, not a state-owned enterprise, and that the United States isn’t at war with China. The judges didn’t seem wholly convinced. Ginsburg called Pincus’s parsing of the level of Beijing’s influence over ByteDance “quibbling.” Rao said Pincus’s criticism of Congress’s rationale for passing the sale-or-ban law required a “very strange framework for thinking about our first branch of government.” But the judges also seemed sympathetic to TikTok’s argument that the government’s restriction of a speech platform could violate Americans’ speech protections. “This case is American speakers … who want to speak to other Americans,” Jeffrey Fisher, an attorney representing a group of TikTok creators who also joined the case against the government, told the court. The judges appeared skeptical of some of the Justice Department’s arguments, quizzing prosecutor Daniel Tenny on why freedom of speech protections would not kick in for TikTok’s U.S. unit. Srinivasan noted that there would be “serious First Amendment concerns” if it were a similar case involving a purely domestic company. The judges even floated a new idea, asking whether adding a disclaimer warning that the Chinese government could influence the app would have resolved Congress’s concerns. TikTok has argued that the sale-or-ban law was not the least restrictive way to resolve federal concerns about the app, and TikTok’s attorney said the disclosure idea was preferable to a ban. While the hearing presented a window into the judges’ thinking, it was unclear how they will rule. The two sides have requested an expedited judgment by December, allowing time for a potential appeal to be filed with the Supreme Court before Jan. 19. A Pew Research Center survey last month found that support for a TikTok ban among adults in the U.S. had fallen from 50 percent last March to about 32 percent today; fewer than half of Republicans surveyed support a ban. Even among people who don’t use TikTok, more said they’re uncertain about a ban than supported one outright. Three TikTok content creators — Talia Cadet, Paul Tran and Kiera Spann — who also sued the Justice Department, saying the ban violates their First Amendment rights, attended the hearing. Tran, who runs a skin care company called Love and Pebble, said a TikTok ban would be a “devastating blow,” as he and his wife have not found a similar sense of community on other platforms. TikTok was launched in 2017 as the internationalized version of Douyin, a short-video app in China that had become a smash hit after its 2016 release. TikTok’s interface is similar to Douyin’s, except that it is in English instead of Chinese, and both are owned by ByteDance. As foreign government officials began raising concerns about users’ data being sent to China, ByteDance has increasingly disaggregated TikTok’s operations. It says American users’ data is currently stored in the U.S. and firewalled from the company’s Chinese operations. These precautions have not quelled concerns. As president in 2020, Trump called TikTok a national security threat, and in April, President Joe Biden signed the TikTok law after it was passed overwhelmingly by Congress with bipartisan support. While the White House says it prefers to see TikTok choose new ownership instead of being banned, TikTok says such a fast divestiture is “not possible,” making it a de facto ban. TikTok filed a legal challenge against the Justice Department in May, calling the law a violation of the First Amendment, with a group of TikTok creators following soon after with their parallel suit. U.S. officials have argued that national-security considerations of TikTok’s foreign ownership outweigh any free speech arguments. Under the law, TikTok can avoid a ban if ByteDance sells the app to non-Chinese owners before the January deadline. The president may extend this deadline by 90 days if TikTok is making progress on a sale — a decision that may fall to Biden’s successor. A sale by January would be highly challenging, because of TikTok’s massive price tag of potentially more than $100 billion, and the short window for completing such a geopolitically sensitive deal. In addition, China said it would ban the sale and export of one of TikTok’s most critical components, its recommendation algorithm. Meanwhile, both the Harris and Trump campaigns are continuing to use TikTok to reach millions of voters — even though government officials have been largely prohibited from using the app on federally owned devices for security reasons since Biden signed the measure into law in 2022. Trump, Harris and their running mates, JD Vance and Tim Walz, all have personal TikTok accounts that post political talking points and scenes from the campaign trail. TikTok counts among the platforms with the broadest reaches for both campaigns, each of which pays Generation Z social media strategists to make videos they hope will go viral. Trump’s 11 million TikTok followers eclipse his 7.7 million follower count on Truth Social, the main social media network he now uses. Harris has 5 million followers on TikTok, with her posts gaining similar numbers of impressions there as they do on X. A TikTok ban could result in political blowback from a small economy of content creators that produces a $24 billion chunk of U.S. GDP, as well as from TikTok’s estimated 170 million U.S. users. Trump’s position on TikTok has shifted. He led the first major crusade to ban or force the sale of TikTok in 2020. But that effort was blocked in court, and Trump advisers have said his interest had wavered even before then, after he was told that internal polls showed a ban could hurt his election chances. Since then, Trump has become one of the app’s few defenders in the top ranks of the Republican Party. In March, he said in a TV interview that a ban would help Facebook, which he labeled “an enemy of the people,” and that “young kids on TikTok would go crazy without it.” In June, after some internal debate, he joined the app with a video saying, “It’s my honor.” Online, Trump has portrayed himself as a savior of the Chinese-owned video app — including in a campaign-stop video on his TikTok account, during which he held up a framed portrait of himself and said, “I’m gonna save TikTok.” “For all of those who want to save TikTok in America, vote for Trump,” he said in a video monologue last week on Truth Social. “The other side is closing it up, but I’m now a big star on TikTok.” When Harris joined the app on a personal account in July, she made a reference to the wave of adoration she’d gained on the app after Biden’s withdrawal from the race. “I’ve heard that recently I’ve been on the For You page, so I thought I’d get on here myself,” she said in her debut. TikTok has referred to these accounts in its legal briefs, arguing they undercut the government’s warning that the app represents an urgent national threat. In March, the vice president said the administration did not “intend to ban TikTok” but thought divestment was necessary, even as she spoke of the app’s upsides. Matthew Schettenhelm, a legal analyst for Bloomberg Intelligence, said in a note Monday that he considered TikTok had only a one-in-three chance of overturning the law, given the skepticism the judges expressed toward their arguments. He added that “a long-shot Supreme Court plea [was their] only realistic legal option.”
A deep legal discussion over the potential ban’s constitutionality Monday morning offered no clear answers, leaving the company’s fate uncertain even as it nears a Jan. 19 deadline to divest from Chinese ownership, with a ban coming into place if it hasn’t done so by that date.
The political backdrop is striking: Vice President Kamala Harris and former president Donald Trump are both seizing on the viral short-video platform to vie for young voters, even though both the Trump and Biden administrations backed banning it.
In Monday morning’s hearing in federal D.C. Court of Appeals, the panel of three judges — Chief Judge Sri Srinivasan and Judges Neomi Rao and Douglas H. Ginsburg — grilled TikTok attorney Andrew Pincus on why he thought the company’s right to free speech outweighed national security concerns over its ownership, citing wartime precedents of the United States curbing the broadcast of foreign propaganda into America.
The judges pressed Pincus on a hypothetical scenario involving a war between the United States and a foreign country, asking whether Congress would be within its right to bar “the enemy’s ownership of a major media source” — in line with Congress’s designation of TikTok and other China-based apps as controlled by a “foreign adversary.”
They also cited the government’s concern over how ByteDance developers in China could curate TikTok’s recommendation algorithm for American users.
Pincus argued that ByteDance, TikTok’s parent company in China, is a private company, not a state-owned enterprise, and that the United States isn’t at war with China. The judges didn’t seem wholly convinced. Ginsburg called Pincus’s parsing of the level of Beijing’s influence over ByteDance “quibbling.” Rao said Pincus’s criticism of Congress’s rationale for passing the sale-or-ban law required a “very strange framework for thinking about our first branch of government.”
But the judges also seemed sympathetic to TikTok’s argument that the government’s restriction of a speech platform could violate Americans’ speech protections.
“This case is American speakers … who want to speak to other Americans,” Jeffrey Fisher, an attorney representing a group of TikTok creators who also joined the case against the government, told the court.
The judges appeared skeptical of some of the Justice Department’s arguments, quizzing prosecutor Daniel Tenny on why freedom of speech protections would not kick in for TikTok’s U.S. unit. Srinivasan noted that there would be “serious First Amendment concerns” if it were a similar case involving a purely domestic company.
The judges even floated a new idea, asking whether adding a disclaimer warning that the Chinese government could influence the app would have resolved Congress’s concerns. TikTok has argued that the sale-or-ban law was not the least restrictive way to resolve federal concerns about the app, and TikTok’s attorney said the disclosure idea was preferable to a ban.
While the hearing presented a window into the judges’ thinking, it was unclear how they will rule. The two sides have requested an expedited judgment by December, allowing time for a potential appeal to be filed with the Supreme Court before Jan. 19.
A Pew Research Center survey last month found that support for a TikTok ban among adults in the U.S. had fallen from 50 percent last March to about 32 percent today; fewer than half of Republicans surveyed support a ban. Even among people who don’t use TikTok, more said they’re uncertain about a ban than supported one outright.
Three TikTok content creators — Talia Cadet, Paul Tran and Kiera Spann — who also sued the Justice Department, saying the ban violates their First Amendment rights, attended the hearing.
Tran, who runs a skin care company called Love and Pebble, said a TikTok ban would be a “devastating blow,” as he and his wife have not found a similar sense of community on other platforms.
TikTok was launched in 2017 as the internationalized version of Douyin, a short-video app in China that had become a smash hit after its 2016 release. TikTok’s interface is similar to Douyin’s, except that it is in English instead of Chinese, and both are owned by ByteDance. As foreign government officials began raising concerns about users’ data being sent to China, ByteDance has increasingly disaggregated TikTok’s operations. It says American users’ data is currently stored in the U.S. and firewalled from the company’s Chinese operations.
These precautions have not quelled concerns. As president in 2020, Trump called TikTok a national security threat, and in April, President Joe Biden signed the TikTok law after it was passed overwhelmingly by Congress with bipartisan support. While the White House says it prefers to see TikTok choose new ownership instead of being banned, TikTok says such a fast divestiture is “not possible,” making it a de facto ban.
TikTok filed a legal challenge against the Justice Department in May, calling the law a violation of the First Amendment, with a group of TikTok creators following soon after with their parallel suit. U.S. officials have argued that national-security considerations of TikTok’s foreign ownership outweigh any free speech arguments.
Under the law, TikTok can avoid a ban if ByteDance sells the app to non-Chinese owners before the January deadline. The president may extend this deadline by 90 days if TikTok is making progress on a sale — a decision that may fall to Biden’s successor.
A sale by January would be highly challenging, because of TikTok’s massive price tag of potentially more than $100 billion, and the short window for completing such a geopolitically sensitive deal.
In addition, China said it would ban the sale and export of one of TikTok’s most critical components, its recommendation algorithm.
Meanwhile, both the Harris and Trump campaigns are continuing to use TikTok to reach millions of voters — even though government officials have been largely prohibited from using the app on federally owned devices for security reasons since Biden signed the measure into law in 2022. Trump, Harris and their running mates, JD Vance and Tim Walz, all have personal TikTok accounts that post political talking points and scenes from the campaign trail.
TikTok counts among the platforms with the broadest reaches for both campaigns, each of which pays Generation Z social media strategists to make videos they hope will go viral. Trump’s 11 million TikTok followers eclipse his 7.7 million follower count on Truth Social, the main social media network he now uses. Harris has 5 million followers on TikTok, with her posts gaining similar numbers of impressions there as they do on X.
A TikTok ban could result in political blowback from a small economy of content creators that produces a $24 billion chunk of U.S. GDP, as well as from TikTok’s estimated 170 million U.S. users.
Trump’s position on TikTok has shifted. He led the first major crusade to ban or force the sale of TikTok in 2020. But that effort was blocked in court, and Trump advisers have said his interest had wavered even before then, after he was told that internal polls showed a ban could hurt his election chances.
Since then, Trump has become one of the app’s few defenders in the top ranks of the Republican Party. In March, he said in a TV interview that a ban would help Facebook, which he labeled “an enemy of the people,” and that “young kids on TikTok would go crazy without it.” In June, after some internal debate, he joined the app with a video saying, “It’s my honor.”
Online, Trump has portrayed himself as a savior of the Chinese-owned video app — including in a campaign-stop video on his TikTok account, during which he held up a framed portrait of himself and said, “I’m gonna save TikTok.”
“For all of those who want to save TikTok in America, vote for Trump,” he said in a video monologue last week on Truth Social. “The other side is closing it up, but I’m now a big star on TikTok.”
When Harris joined the app on a personal account in July, she made a reference to the wave of adoration she’d gained on the app after Biden’s withdrawal from the race. “I’ve heard that recently I’ve been on the For You page, so I thought I’d get on here myself,” she said in her debut.
TikTok has referred to these accounts in its legal briefs, arguing they undercut the government’s warning that the app represents an urgent national threat.
In March, the vice president said the administration did not “intend to ban TikTok” but thought divestment was necessary, even as she spoke of the app’s upsides.
Matthew Schettenhelm, a legal analyst for Bloomberg Intelligence, said in a note Monday that he considered TikTok had only a one-in-three chance of overturning the law, given the skepticism the judges expressed toward their arguments. He added that “a long-shot Supreme Court plea [was their] only realistic legal option.”
广受欢迎的 TikTok 应用程序的命运岌岌可危，该公司周一试图说服华盛顿一家上诉法院停止一项即将在全美实施的禁止使用该平台的禁令。
周一上午，一场关于潜在禁令是否符合宪法的深入法律讨论没有给出明确的答案，这让该公司的命运变得扑朔迷离，即使它即将在1月19日的最后期限前从中方所有权中剥离，如果到那时还没有完成剥离，禁令就会生效。
政治背景引人注目： 副总统卡马拉-哈里斯（Kamala Harris）和前总统唐纳德-特朗普（Donald Trump）都在利用病毒式短视频平台争夺年轻选民，尽管特朗普和拜登政府都支持禁止短视频。
周一上午，在华盛顿特区联邦上诉法院的听证会上，由三名法官组成的合议庭--首席法官斯里-斯里尼瓦桑（Sri Srinivasan）、法官尼奥米-拉奥（Neomi Rao）和道格拉斯-金斯伯格（Douglas H. Ginsburg）--对 TikTok 的律师安德鲁-平卡斯（Andrew Pincus）进行了质询，询问他为何认为该公司的言论自由权超过了对其所有权的国家安全担忧，并援引了美国在战时遏制向美国播放外国宣传片的先例。
法官们向平卡斯提出了一个假设，即美国与外国发生战争，询问国会是否有权禁止 “敌方拥有主要媒体资源”--这与国会将 TikTok 和其他中国应用程序指定为由 “外国对手 ”控制是一致的。
他们还引用了政府对中国 ByteDance 开发人员如何为美国用户策划 TikTok 推荐算法的担忧。
平卡斯辩称，TikTok 在中国的母公司 ByteDance 是一家私营企业，而非国有企业，而且美国并未与中国交战。法官们似乎并不完全信服。金斯伯格称，平卡斯对中国政府对字节跳动的影响程度的解析是 “狡辩”。拉奥（Rao）说，平卡斯对国会通过 “不出售就禁止 ”法律的理由的批评需要一个 “非常奇怪的框架来思考我们的第一政府部门”。
但法官们似乎也同情 TikTok 的论点，即政府限制言论平台可能会侵犯美国人的言论保护。
“代表一群 TikTok 创作者的律师杰弗里-费舍尔（Jeffrey Fisher）在法庭上说："本案是美国发言人......他们想对其他美国人说话。
法官们似乎对司法部的一些论点持怀疑态度，他们询问检察官丹尼尔-滕尼（Daniel Tenny）为何不对 TikTok 的美国分部实行言论自由保护。斯里尼瓦桑指出，如果这是一起涉及纯粹国内公司的类似案件，就会有 “严重的第一修正案问题”。
法官们甚至提出了一个新的想法，询问添加一个免责声明，警告中国政府可能会影响该应用是否能解决国会的担忧。TikTok 认为，不销售就禁止的法律并不是解决联邦对该应用关注的最小限制方式，TikTok 的律师表示，披露信息的想法比禁止更可取。
虽然听证会为法官们的思考提供了一个窗口，但目前还不清楚他们将如何裁决。双方都要求在 12 月前做出加急判决，以便有时间在 1 月 19 日前向最高法院提出上诉。
皮尤研究中心（Pew Research Center）上个月的一项调查发现，美国成年人中支持禁止 TikTok 的比例已从去年 3 月的 50% 降至目前的 32%；不到一半的受访共和党人支持禁止 TikTok。即使在不使用 TikTok 的人群中，表示对禁令不确定的人也多于直接支持禁令的人。
三位 TikTok 内容创作者塔利亚-卡德特（Talia Cadet）、保罗-陈（Paul Tran）和琪拉-斯潘（Kiera Spann）也出席了听证会，他们还起诉了司法部，称禁令侵犯了他们的第一修正案权利。
Tran 经营着一家名为 “Love and Pebble ”的护肤品公司，他说 TikTok 被禁将是一个 “毁灭性的打击”，因为他和妻子在其他平台上没有找到类似的社区感。
TikTok 于 2017 年推出，是豆瓣的国际化版本，豆瓣是中国的一款短视频应用，2016 年发布后大受欢迎。TikTok 的界面与豆瓣类似，只是使用的是英文而不是中文，两者都归字节跳动所有。随着外国政府官员开始担心用户数据被发送到中国，ByteDance 越来越多地分解 TikTok 的运营。该公司称，美国用户的数据目前存储在美国，并与该公司的中国业务防火墙隔离。
这些预防措施并未消除人们的担忧。今年 4 月，乔-拜登总统签署了 TikTok 法案，该法案在国会两党的支持下以压倒性多数获得通过。虽然白宫表示更希望看到 TikTok 选择新的所有者而不是被取缔，但 TikTok 表示这种快速剥离是 “不可能的”，这使得它成为事实上的禁令。
TikTok 于今年 5 月对司法部提起法律诉讼，称该法律违反了宪法第一修正案。美国官员辩称，TikTok 的外国所有权所带来的国家安全考虑超过了任何言论自由的论点。
根据法律规定，如果 ByteDance 在 1 月最后期限前将 TikTok 出售给非中国所有者，TikTok 就可以避免被禁用。如果 TikTok 在出售方面取得进展，总统可以将最后期限延长 90 天--拜登的继任者可能会做出这一决定。
由于 TikTok 的标价可能超过 1000 亿美元，而且完成这一地缘政治敏感交易的时间很短，因此在 1 月前完成出售将极具挑战性。
此外，中国表示将禁止销售和出口 TikTok 最关键的组件之一--推荐算法。
与此同时，哈里斯和特朗普的竞选团队仍在继续使用 TikTok 来接触数百万选民--尽管自拜登于 2022 年将该措施签署为法律以来，出于安全原因，政府官员基本上被禁止在联邦政府拥有的设备上使用该应用。特朗普、哈里斯以及他们的竞选伙伴 JD Vance 和 Tim Walz 都拥有个人 TikTok 账户，发布政治谈话要点和竞选活动场景。
TikTok 是这两个竞选团队覆盖面最广的平台之一，每个竞选团队都向 Z 世代社交媒体策略师支付费用，让他们制作视频，希望这些视频能成为病毒式传播。特朗普在 TikTok 上的 1,100 万粉丝超过了他在 Truth Social 上的 770 万粉丝，Truth Social 是特朗普目前使用的主要社交媒体网络。哈里斯在 TikTok 上有 500 万粉丝，她发布的视频在 TikTok 上获得的印象数与在 X 上的相似。
TikTok 在美国国内生产总值中占了 240 亿美元，而内容创作者的经济规模很小，TikTok 的美国用户估计有 1.7 亿人，因此禁止 TikTok 可能会引起他们的政治反弹。
特朗普对 TikTok 的立场发生了转变。他在 2020 年领导了禁止或强制出售 TikTok 的第一次大规模讨伐行动。但这一努力在法庭上受阻，特朗普的顾问说，在此之前，他的兴趣就已经动摇了，因为他被告知，内部民意调查显示，禁令可能会损害他的选举机会。
从那时起，特朗普就成了共和党高层为数不多的该应用程序的维护者之一。今年 3 月，他在一次电视采访中说，禁令将有助于被他贴上 “人民公敌 ”标签的 Facebook，“没有了 TikTok，TikTok 上的年轻孩子们会发疯的”。今年 6 月，经过一番内部争论后，他加入了该应用，并在一段视频中说：“这是我的荣幸”。
在网上，特朗普把自己描绘成中国人拥有的视频应用的救世主--包括在他的 TikTok 账户上的竞选停止视频中，他举着自己的相框肖像说：“我要拯救 TikTok”。
“所有想拯救美国 TikTok 的人，请投票给特朗普，“他上周在 ”真相社交 "网站上的一段视频独白中说。“对方正在关闭它，但我现在是 TikTok 上的大明星。”
今年7月，当哈里斯以个人账户加入该应用时，她提到了拜登退出竞选后她在该应用上获得的崇拜浪潮。“她在首次亮相时说："我听说最近我上了‘为你而战’页面，所以我想我自己也应该上这个页面。
TikTok 在其法律简报中提到了这些账号，认为它们削弱了政府关于该应用代表着紧迫的国家威胁的警告。
今年 3 月，副总统在谈到 TikTok 的优点时说，政府并没有 “禁止 TikTok 的意图”，但认为撤资是必要的。
彭博情报公司（Bloomberg Intelligence）的法律分析师马修-谢特滕海姆（Matthew Schettenhelm）在周一的一份说明中说，鉴于法官对他们的论点表示怀疑，他认为 TikTok 只有三分之一的机会推翻法律。他补充说，“向最高法院提出上诉是他们唯一现实的法律选择”。
通过DeepL.com（免费版）翻译