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The US government has disclosed new national security concerns around TikTok and its Chinese parent ByteDance, as it fights their challenge to a law that would force a sale or ban of the app.
In legal documents filed on Friday, the US Department of Justice alleged some of TikTok’s US user data had been stored in China and the company was able to collect data based on users’ views on sensitive issues such as abortion.
Under a bill Congress approved in April, ByteDance must divest TikTok by January 2025 or face a countrywide ban. The move came after US officials warned the popular platform posed national security risks, partly because ByteDance could be compelled to share the personal information of the 170mn Americans who use the app with Beijing under Chinese law.
According to a declaration by Casey Blackburn, assistant director of national intelligence at the Office of the Director of National Intelligence, “ByteDance and TikTok Global have taken action in response to [Chinese government] demands to censor content outside of China”.
In May, TikTok and ByteDance sued the US government to block the bill, claiming it was unconstitutional and violated the First Amendment, which protects free speech. TikTok has denied the Chinese government has any control over the app or that it has handed over any data to Beijing.
“Nothing in this brief changes the fact that the Constitution is on our side,” said a TikTok spokesperson. The “government has never put forth proof of its claims, including when Congress passed this unconstitutional law”.
“Today, once again, the government is taking this unprecedented step while hiding behind secret information. We remain confident we will prevail in court.”
In its filings, the DoJ defended the bill’s constitutionality, arguing it raised no First Amendment issues as it focused on threats to national security. It added that China, ByteDance and TikTok Global are not covered by First Amendment rights, while TikTok US “by its own admission is merely a conduit for content moderation decisions made by the Chinese entities”, said a senior justice department official explaining the filings.
The DoJ official also said “any burden” on creators’ speech is “incidental” and they had no First Amendment rights to use TikTok in particular.
The department alleged TikTok employees had shared “significant amounts of restricted US user data” to address operational issues on Lark, a software developed by ByteDance that staff at both TikTok and its parent company use to communicate internally. It added this resulted in sensitive US data being stored on Chinese servers and accessible to China-based ByteDance staff.
TikTok in 2022 sought to remove sensitive US user data “improperly” held on Lark channels, according to the filings.
The DoJ also claimed ByteDance and TikTok employees in the US and China could collect bulk user information based on content, including opinions on religion, abortion or gun control. A separate instrument could allegedly censor content based on the use of certain words. Although this was “subject to certain policies that only apply to users based in China”, other policies may have been applied to users elsewhere, the official said.
TikTok in 2022 investigated whether these policies had been used in the US, according to the filings.
TikTok has invested more than $2bn in “Project Texas”, its corporate restructuring plan to protect US user data from Chinese influence through a partnership with Oracle. But the DoJ official said this was “not sufficient to persuade the executive branch that they can be trusted to live by that agreement”.
In their petition to block the bill, TikTok and ByteDance had argued that a divestiture “would disconnect Americans from the rest of the global community on a platform devoted to shared content — an outcome fundamentally at odds with the constitution’s commitment to both free speech and individual liberty”.
TikTok successfully sued the US government in 2020 when then-president Donald Trump issued an executive order to ban the app, giving ByteDance 90 days to divest from its American assets and any data that TikTok had collected in the country.
TikTok’s fate may still depend on American politics. Trump, the Republican presidential nominee in 2024, recently said he would not ban the app if he returned to the White House in order to preserve “competition” in a market dominated by Mark Zuckerberg’s Meta.
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