IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________
)
TIKTOK INC., )
)
and )
)
BYTEDANCE LTD., )
)
Petitioners, )
)
v. ) No. ________________
)
)
MERRICK B. GARLAND, in his official )
capacity as Attorney General of the )
United States, )
)
Respondent. )
)

PETITION FOR REVIEW OF

CONSTITUTIONALITY OF THE
PROTECTING AMERICANS FROM FOREIGN
ADVERSARY CONTROLLED APPLICATIONS ACT
 1. Congress has taken the unprecedented step of expressly

singling out and banning TikTok: a vibrant online forum for protected

speech and expression used by 170 million Americans to create, share,

and view videos over the Internet. For the first time in history, Congress

has enacted a law that subjects a single, named speech platform to a

permanent, nationwide ban, and bars every American from participating

in a unique online community with more than 1 billion people worldwide.

2. That law — the Protecting Americans From Foreign

Adversary Controlled Applications Act (the “Act”) — is unconstitutional.

Banning TikTok is so obviously unconstitutional, in fact, that even the

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

ownership. According to its sponsors, the Act responds to TikTok’s

ultimate ownership by ByteDance Ltd., a company with Chinese

subsidiaries whose employees support various ByteDance businesses,

including TikTok. They claim that the Act is not a ban because it offers

ByteDance a choice: divest TikTok’s U.S. business or be shut down. 1

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
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 3. But in reality, there is no choice. The “qualified divestiture”

demanded by the Act to allow TikTok to continue operating in the United

States is simply not possible: not commercially, not technologically, not

legally. And certainly not on the 270-day timeline required by the Act.

Petitioners have repeatedly explained this to the U.S. government, and

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,

silencing the 170 million Americans who use the platform to

communicate in ways that cannot be replicated elsewhere.

4. Of course, even if a “qualified divestiture” were feasible, the

Act would still be an extraordinary and unconstitutional assertion of

power. If upheld, it would allow the government to decide that a company

may no longer own and publish the innovative and unique speech

United States. References to “TikTok” are to the online platform, which

includes both the TikTok mobile application and web browser experience.
References to “ByteDance Ltd.” are to the specific Cayman Islands-
incorporated holding company that is identified in the Act and is a
Petitioner in this lawsuit. References to “ByteDance” are to the
ByteDance group, inclusive of ByteDance Ltd. and relevant operating
subsidiaries. TikTok Inc. and ByteDance. Ltd. are together referred to
as “Petitioners.”
2
platform it created. If Congress can do this, it can circumvent the First

Amendment by invoking national security and ordering the publisher of

any individual newspaper or website to sell to avoid being shut down.

And for TikTok, any such 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.

5. There are good reasons why Congress has never before

enacted a law like this. Consistent with the First Amendment’s

guarantee of freedom of expression, the United States has long

championed a free and open Internet — and the Supreme Court has

repeatedly recognized that speech “conveyed over the Internet” fully

qualifies for “the First Amendment’s protections.” 303 Creative LLC v.

Elenis, 600 U.S. 570, 587 (2023). And consistent with the fundamental

principles of fairness and equal treatment rooted in the Bill of Attainder

Clause and the Fifth Amendment, Congress has never before crafted a

two-tiered speech regime with one set of rules for one named platform,

and another set of rules for everyone else.

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 6. In dramatic contrast with past enactments that sought to

regulate constitutionally protected activity, Congress enacted these

extreme measures without a single legislative finding. The Act does not

articulate any threat posed by TikTok nor explain why TikTok should be

excluded from evaluation under the standards Congress concurrently

imposed on every other platform. Even the statements by individual

Members of Congress and a congressional committee report merely

indicate concern about the hypothetical possibility that TikTok could be

misused in the future, without citing specific evidence — even though the

platform has operated prominently in the United States since it was first

launched in 2017. Those speculative concerns fall far short of what is

required when First Amendment rights are at stake.

7. Nor is there any indication that Congress considered any

number of less restrictive alternatives, such as those that Petitioners

developed with the Executive Branch after government agencies began

evaluating the security of U.S. user data and the risk of foreign

government influence over the platform’s content as far back as 2019.

While such concerns were never substantiated, Petitioners nevertheless

4
worked with the government for four years on a voluntary basis to

develop a framework to address the government’s concerns.

8. As part of this engagement, Petitioners have voluntarily

invested more than $2 billion to build a system of technological and

governance protections — sometimes referred to as “Project Texas” — to

help safeguard U.S. user data and the integrity of the U.S. TikTok

platform against foreign government influence. Petitioners have also

made extraordinary, additional commitments in a 90-page draft National

Security Agreement developed through negotiations with the Committee

on Foreign Investment in the United States (“CFIUS”), including

agreeing to a “shut-down option” that would give the government the

authority to suspend TikTok in the United States if Petitioners violate

certain obligations under the agreement.

9. Congress tossed this tailored agreement aside, in favor of the

politically expedient and punitive approach of targeting for disfavor one

publisher and speaker (TikTok Inc.), one speech forum (TikTok), and that

forum’s ultimate owner (ByteDance Ltd.). Through the Act’s two-tiered

structure, Congress consciously eschewed responsible industry-wide

regulation and betrayed its punitive and discriminatory purpose.

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Congress provided every other company — however serious a threat to

national security it might pose — paths to avoiding a ban, excluding only

TikTok Inc. and ByteDance Ltd. Indeed, for any other company’s

application to be banned, Congress mandated notice and a “public report”

describing “the specific national security” concern, accompanied by

supporting classified evidence. For Petitioners only, however, there is no

statement of reasons and no supporting evidence, with any discussion of

the justifications for a ban occurring only behind closed doors.

10. Congress must abide by the dictates of the Constitution even

when it claims to be protecting against national security risks: “against

[those] dangers . . . as against others, the principle of the right to free

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

6
and exclusive jurisdiction over this challenge to the constitutionality of

the Act. 2

Background and Nature of Proceedings

A. TikTok Is a Speech Platform Used by 170 Million

Americans.

12. TikTok is an online video entertainment platform designed to

provide a creative and entertaining forum for users to express themselves

and make connections with others over the Internet. More than 170

million Americans use TikTok every month, to learn about and share

information on a range of topics — from entertainment, to religion, to

politics. Content creators use the TikTok platform to express their

opinions, discuss their political views, support their preferred political

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

2 A copy of the Act is attached to this Petition as Exhibit A. Because this

Petition does not involve a challenge to any agency action, it is not
governed by Federal Rule of Appellate Procedure 15(a). Petitioners
intend to file a separate motion regarding the procedures governing this
original proceeding. Petitioners summarize the pertinent facts and
claims below to facilitate this Court’s review consistent with the practice
of a case-initiating pleading in a court of original jurisdiction, but reserve
their rights to present additional facts and arguments in due course.
7
platform to post product reviews, business reviews, and travel

information and reviews.

13. In the United States, the TikTok platform is provided by

TikTok Inc., a California-incorporated company that has its principal

place of business in Culver City, California and offices in New York, San

Jose, Chicago, and Miami, among other locations. TikTok Inc. has

thousands of employees in the United States. Like many platforms

owned by companies that operate globally, the global TikTok platform is

supported not only by those employees, but also by employees of other

ByteDance subsidiaries around the globe, including in Singapore, the

United Kingdom, Brazil, Germany, South Africa, Australia, and China.

Many of the global TikTok platform’s functions are spread across

different corporate entities and countries, and the global TikTok business

is led by a leadership team based in Singapore and the United States.

Like other U.S. companies, TikTok Inc. is governed by U.S. law.

14. TikTok Inc.’s ultimate parent company is ByteDance Ltd., a

Cayman Islands-incorporated equity holding company. ByteDance was

founded in 2012 by Chinese entrepreneurs. Over time, the company

sought funding to fuel growth, as is common in the technology sector,

8
which resulted in the issuance of additional equity and the dilution of

existing shares. Today, approximately 58 percent of ByteDance Ltd. is

owned by global institutional investors (such as BlackRock, General

Atlantic, and Susquehanna International Group), 21 percent is owned by

the company’s founder (a Chinese national who lives in Singapore), and

21 percent is owned by employees — including approximately 7,000

Americans.

15. ByteDance launched TikTok in May 2017 in over 150

countries, including the United States. 3 Since its launch, TikTok has

become one of the world’s most popular applications, with over 1 billion

users worldwide. As of January 2024, more than 170 million Americans

use TikTok on a monthly basis.

16. Users primarily view content on TikTok through its “For You”

page, which presents a collection of videos curated by TikTok’s

proprietary recommendation engine. The recommendation engine

customizes each user’s content feed based on how the user interacts with

3 TikTok was later relaunched in August 2018 following a transaction

involving the company Musical.ly. See generally Petition for Review,
TikTok Inc. v. CFIUS, No. 20-1444 (D.C. Cir. Nov. 10, 2020).
9
the content that the user watches. TikTok’s popularity is based in large

part on the effectiveness of the recommendation engine. The source code

for TikTok’s recommendation engine was originally developed by

ByteDance engineers based in China, and the engine is customized for

operations in TikTok’s various global markets, including in the United

States. TikTok is not offered in mainland China.

17. Aside from TikTok, ByteDance has developed and operates

more than a dozen other online platforms and software applications for

use in U.S. and international markets, including for content-sharing,

video and music editing, e-commerce, gaming, and enterprise

productivity.

B. The Government Previously Made Unlawful Attempts

to Ban TikTok.

18. Petitioners’ efforts to address the U.S. government’s asserted

concerns regarding the TikTok platform date back to 2019. At that time,

Petitioners began engaging with CFIUS, which had initiated a review of

ByteDance Ltd.’s 2017 acquisition of Musical.ly, another Internet-based

video-sharing platform.

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 19. Petitioners were in the early stages of engaging with CFIUS

on a voluntary basis to address the government’s concerns, when on

August 6, 2020, President Trump abruptly issued an executive order

purporting to ban TikTok under the International Emergency Economic

Powers Act (“IEEPA”), 50 U.S.C. §§ 1701–08. See 85 Fed. Reg. 48,637

(the “Ban Order”). Two separate district courts preliminarily enjoined

the Ban Order, concluding (among other things) that it exceeded the

President’s IEEPA authority. TikTok Inc. v. Trump, 490 F. Supp. 3d 73,

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).

20. Specifically, as these courts correctly recognized, the

President’s IEEPA authority “to deal with any unusual and

extraordinary threat” to the nation “does not include the authority to

regulate or prohibit, directly or indirectly ... [any] personal

communication” or the importation or exportation “of any information or

informational materials.” 50 U.S.C. § 1702(b)(1), (3). These restrictions

on the President’s IEEPA authority — which Congress expanded through

multiple amendments to the statute — were designed “to prevent the

statute from running afoul of the First Amendment.” United States v.

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)

(IEEPA’s limitations necessary “to prevent the executive branch from

restricting the international flow of materials protected by the First

Amendment”); Marland, 498 F. Supp. 3d at 629 (same).

21. Looking to the foundational First Amendment principles

codified in IEEPA’s text and legislative history, these courts concluded

that President Trump’s efforts to ban TikTok violated the statute and

raised “serious” constitutional questions (which were unnecessary to

decide under the doctrine of constitutional avoidance). TikTok Inc., 507

F. Supp. 3d at 112 n.6; TikTok Inc., 490 F. Supp. 3d at 83 n.3. The courts

granted the government’s motions to voluntarily dismiss its appeals after

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).

22. Separately, acting on a CFIUS referral, President Trump on

August 14, 2020 issued an order under Section 721 of the Defense

Production Act, 50 U.S.C. § 4565, purporting to direct ByteDance to

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divest from TikTok’s U.S. business and U.S. user data. 85 Fed. Reg.

51,297 (the “Divestment Order”). On November 10, 2020, Petitioners

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

abeyance in February 2021 on the parties’ joint motion to allow the

parties to negotiate a resolution. The government has filed status reports

every 60 days since then, most recently on April 22, 2024. Those status

reports have consistently reported that “[t]he parties continue to be

involved in ongoing negotiations” and “[a]beyance continues to be

appropriate.” See, e.g., Status Report, TikTok Inc. v. CFIUS, No. 20-1444

(D.C. Cir. Apr. 22, 2024).

23. Between January 2021 and August 2022, Petitioners and

CFIUS engaged in an intensive, fact-based process to develop a National

Security Agreement that would resolve the U.S. government’s concerns

about whether Chinese authorities might be able to access U.S. user data

or manipulate content on TikTok, as well as resolve the pending CFIUS

dispute. During that time, Petitioners and government officials

13
communicated regularly, often several times a week — including several

in-person meetings — about the government’s concerns and potential

solutions. The result was an approximately 90-page draft National

Security Agreement with detailed annexes embodying a comprehensive

solution addressing the government’s national security concerns.

Notably, the draft National Security Agreement provided that all

protected U.S. user data (as defined in the agreement) would be stored in

the cloud environment of a U.S.-government-approved partner, Oracle

Corporation, which would also review and vet the TikTok source code.

24. From Petitioners’ perspective, all indications were that they

were nearing a final agreement. After August 2022, however, CFIUS

without explanation stopped engaging with Petitioners in meaningful

discussions about the National Security Agreement. Petitioners

repeatedly asked why discussions had ended and how they might be

restarted, but they did not receive a substantive response. In March

2023, without providing any justification for why the draft National

Security Agreement was inadequate, CFIUS insisted that ByteDance

would be required to divest the U.S. TikTok business.

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 25. Since March 2023, Petitioners have explained to CFIUS, in

multiple written communications and in-person meetings, that a

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

with that assessment, offering instead only a conclusory assertion that

the reason ByteDance was not divesting was because it was simply

unwilling to do so. The Act nonetheless incorporates precisely such an

infeasible divestiture standard.

C. A Divestiture that Severs TikTok’s U.S. Operations

From the Rest of the Globally Integrated TikTok
Business Is Not Commercially, Technologically, or
Legally Feasible.

26. The Act purports to allow Petitioners to avoid a ban by

executing a “qualified divestiture.” Sec. 2(c). But that alternative is

illusory because, as Petitioners have repeatedly explained to CFIUS, the

divestiture of the TikTok U.S. business and its severance from the

globally integrated platform of which it is an integral part is not

commercially, technologically, or legally feasible.

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 27. First, a standalone U.S. TikTok platform would not be

commercially viable. TikTok and its competitors are globally integrated

platforms where content created in one country is available to users in

other countries. Indeed, a substantial part of TikTok’s appeal is the

richness of the international content available on the platform — from

global sporting events like the Olympics to international K-pop stars

from South Korea, as well as videos created by U.S. creators and enjoyed

by audiences worldwide. A divestment of the U.S. TikTok platform,

without any operational relationship with the remainder of the global

platform, would preclude the interoperability necessary to make

international content seamlessly available in the U.S. market and vice

versa. As a result, the U.S. TikTok platform would become an “island”

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

4 The contemplated qualified divestiture would also undercut the

important role currently played by American voices in the global
conversation ongoing on TikTok.
16
 28. Second, precipitously moving all TikTok source code

development from ByteDance to a new TikTok owner would be impossible

as a technological matter. The platform consists of millions of lines of

software code that have been painstakingly developed by thousands of

engineers over multiple years. Although much of this code is basic

infrastructure for running the global TikTok platform and has nothing at

all to do with TikTok’s recommendation algorithm, the statute requires

that all of this code be wrested from Petitioners, so that there is no

“operational relationship” between ByteDance and the new U.S.

platform. Specifically, to comply with the law’s divestiture requirement,

that code base would have to be moved to a large, alternative team of

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

source code to perform the ongoing, necessary maintenance and

development activities for the platform. Moreover, to keep the platform

functioning, these engineers would need access to ByteDance software

tools, which the Act prohibits. Such a fundamental rearchitecting is not

17
remotely feasible on anything approaching the 270-day timeframe

contemplated by the Act.

29. Third, 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. Like the United States,5

China regulates the export of certain technologies originating there.

China’s export control rules cover “information processing technologies”

such as “personal interactive data algorithms.” 6 China’s official news

agency has reported that under these rules, any sale of recommendation

algorithms developed by engineers employed by ByteDance subsidiaries

in China, including for TikTok, would require a government license. 7

5For example, the U.S. Department of Commerce has issued restrictions

on the export to China of advanced chips that can be used to train
artificial intelligence models. E.g., Implementation of Additional Export
Controls: Certain Advanced Computing Items; Supercomputer and
Semiconductor End Use; Updates and Corrections, 88 Fed. Reg. 73458
(Oct. 25, 2023) (to be codified at 15 C.F.R. § 732.2 et seq.).
6See Karen M. Sutter, Cong. Rsch. Serv., IN11524, China Issues New
Export Control Law and Related Policies 2 (2020).
7 Paul Mozur, Raymond Zhong & David McCabe, TikTok Deal Is
Complicated by New Rules From China Over Tech Exports, N.Y. Times
(Aug. 29, 2020), https://perma.cc/L6RB-CTT9.
18
China also enacted an additional export control law that “gives the

Chinese government new policy tools and justifications to deny and

impose terms on foreign commercial transactions.” 8 China adopted these

enhanced export control restrictions between August and October 2020,

shortly after President Trump’s August 6, 2020 and August 14, 2020

executive orders targeting TikTok. By doing so, the Chinese government

clearly signaled that it would assert its export control powers with

respect to any attempt to sever TikTok’s operations from ByteDance, and

that any severance would leave TikTok without access to the

recommendation engine that has created a unique style and community

that cannot be replicated on any other platform today.

D. The Act Bans TikTok and Other ByteDance

Applications.

30. On April 24, 2024, the President signed the Protecting

Americans from Foreign Adversary Controlled Applications Act.

31. The Act prohibits, on pain of draconian penalties, “online

mobile application store[s]” and “internet hosting services” from servicing

“foreign adversary controlled application[s]” within the United States.

8 Sutter, supra n.6.

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See Sec. 2(a), 2(d)(1)(A). This includes the “distribution, maintenance, or

updating” of a covered application through an online marketplace.

Sec. 2(a)(1).

32. Section 2(g)(3) creates two classes of “foreign adversary

controlled applications” covered by the Act.

33. The first class singles out only one corporate group:

“ByteDance[] Ltd.,” “TikTok,” their “subsidiar[ies] or successor[s]” that

are “controlled by a foreign adversary,” or any entity “owned or

controlled” by the aforementioned. 9 The Act deems any application

operated by these entities a “foreign adversary controlled application,”

without any finding about why any particular application — much less

every application operated by these entities — should be so designated.

See Sec. 2(g)(3)(A).

9 “TikTok” is a platform, not a legal entity. Petitioners assume that

Congress intended this provision to be a reference to TikTok Inc., and
further reserve their rights to amend this Petition to include additional
TikTok entities to the extent the government takes the position that
other entities are covered by this reference. In any event, TikTok Inc. is
covered as an entity “owned or controlled” by ByteDance Ltd.
20
 34. The second class creates a discretionary process by which the

President can designate other companies whose applications will also

effectively be banned. Under these provisions, the President may

designate an application as a “foreign adversary controlled application”

if several qualifications are met:

a. Covered Company. The website or application is operated

directly or indirectly by a “covered company” — i.e., a

company that operates a website or application that

permits users to share content and has at least 1 million

monthly active users. See Sec. 2(g)(2)(A).

b. Controlled by a Foreign Adversary. The “covered company”

operating the website or application must also be

“controlled by a foreign adversary,” meaning it is

“headquartered in, has its principal place of business in, or

is organized under the laws” of a “foreign adversary

country,” which currently includes China, North Korea,

Russia, and Iran. Sec. 2(g)(1)(A), (g)(4); see also 10 U.S.C.

§ 4872(d)(2). A company may also be “controlled by a

foreign adversary” if persons domiciled in any of the

21
 specified countries (i.e., China, Iran, Russia, or North

Korea) directly or indirectly own at least 20 percent of the

company. Sec. 2(g)(1)(B).

c. Not Exempt under Sec. 2(g)(2)(B). But Congress

specifically exempted from the term “covered company”

any “entity that operates” a website or application “whose

primary purpose is to allow users to post product reviews,

business reviews, or travel information and reviews.” An

entity that operates a single website or application of this

nature thus cannot be a “covered company,” even if it is

“controlled by a foreign adversary,” poses a significant

national security risk, and separately operates an

application whose primary purpose is anything other than

allowing users to post reviews. Sec. 2(g)(2)(B).

d. Presidential Determination, Notice and Report, and

Judicial Review. Finally, the President must determine

that such a company presents “a significant threat to the

national security of the United States.” Sec. 2(g)(3)(B)(ii).

Before making such a determination, the President must

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 issue public notice proposing the determination and then

provide a public report to Congress describing “the specific

national security concern involved,” supplemented by a

classified annex, and also explain “what assets would need

to be divested to execute a qualified divestiture.” Id. These

presidential determinations are then subject to judicial

review. Sec. 3(a).

35. Section 2(c) exempts a “foreign adversary controlled

application[]” from the Act’s prohibitions if the company that operates

the application executes a “qualified divestiture.” Sec. 2(c). The

President must determine that such divestiture would (1) “result in the

relevant covered company no longer being controlled by a foreign

adversary,” and (2) “preclude[] the establishment or maintenance of any

operational relationship” between the application’s U.S. operations and

any formerly affiliated entities that are controlled by a foreign adversary,

including “any cooperation with respect to the operation of a content

recommendation algorithm.” Sec. 2(c), (g)(6). As noted above, the Act’s

broad definition of “controlled by a foreign adversary’’ includes, among

other things, any entity organized under the laws of a “foreign adversary

23
country,” or any entity in which a foreign person domiciled in a foreign

adversary country holds at least a 20 percent ownership stake.

Sec. 2(g)(1), (3)(B)(i), (4).

36. The prohibition on providing Internet hosting and mobile

application store services to TikTok and other ByteDance applications

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

President certifies to Congress that a path to executing a qualified

divestiture has been identified, evidence of significant progress toward

executing that qualified divestiture has been produced, and the relevant

binding legal agreements to enable execution of the qualified divestiture

are in place.

37. “Before the date on which [this] prohibition” takes effect,

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

user with respect to such application.” Sec. 2(b).10

10Because Section 2(b)’s data portability requirement applies “[b]efore”

the prohibition under Section 2(a) takes effect, it cannot be “given effect”
without Section 2(a) for purposes of Section 2(e)(1) of the Act, which
provides that “[i]f any provision of this section or the application of this
24
 38. Because the Act lacks any legislative findings or a statement

of purpose, Petitioners and the more than 170 million American monthly

users of TikTok are left to scrutinize statements from individual

Members of Congress and other sources to try to discern any purported

justification for this extraordinary intrusion on free speech rights. Based

on these sources, it appears at least some Members of Congress sought

to address “two threats” that could emerge from foreign ownership of

communications platforms. 11

39. First, they may have sought to protect U.S. users’ “data

security.” 12 According to the House Committee Report for an earlier

version of the Act, mobile applications, including those that are not

section to any person or circumstance is held invalid, the invalidity shall

not affect the other provisions or applications of this section that can be
given effect without the invalid provision or application.” Because
Section 2(a) violates the Constitution for the reasons set forth herein,
Section 2(b) is accordingly “not operative in the absence of the
unconstitutional provision.” Barr v. Am. Ass’n of Pol. Consultants, Inc.,
140 S. Ct. 2335, 2352 n.9 (2020).
11Jane Coaston, What the TikTok Bill Is Really About, According to a
Leading Republican, N.Y. Times (Apr. 1, 2024), https://perma.cc/BL32-
786X (quoting the Act’s original sponsor, Rep. Mike Gallagher).
12 Id.
25
controlled by foreign adversaries, can “collect vast amounts of data on

Americans.” 13 The House Committee Report expressed a concern that

such data could be used by a foreign adversary to “conduct espionage

campaigns,” such as by tracking specific individuals. 14

40. Second, others in Congress appear to have been motivated by

a “greater concern”: an alleged “propaganda threat.” 15 One proponent of

the Act stated that communications applications could be used to “push

misinformation, disinformation, and propaganda on the American

public.” 16 Another supporter claimed in the House Select Committee

press release accompanying the bill’s introduction that “[TikTok] is . . .

poisoning the minds of our youth every day on a massive scale.” 17

13H.R. Comm. on Energy & Com., Protecting Americans from Foreign

Adversary Controlled Applications Act, H.R. Rep. No. 118-417 at 2 (2024)
(hereinafter the “House Committee Report”).
14 Id.
15 Coaston, supra n.11 (quoting Rep. Gallagher).
16 House Committee Report at 2.
17Press Release, U.S. House Select Comm. on Strategic Competition
Between the U.S. and the Chinese Communist Party, Gallagher,
Bipartisan Coalition Introduce Legislation to Protect Americans From
Foreign Adversary Controlled Applications, Including TikTok (Mar. 5,
2024), https://perma.cc/KC5T-6AX3.
26
 E. Congress Disregarded Alternatives to Banning TikTok,
Such as the National Security Measures Petitioners
Negotiated with the Executive Branch.

41. Petitioners have demonstrated a commitment to addressing

both of those concerns without the need to resort to the drastic,

unconstitutional step of shuttering one of the most widely used forums

for speech in the United States. The 90-page draft National Security

Agreement that Petitioners developed with CFIUS would, if

implemented, provide U.S. TikTok users with protections more robust

than those employed by any other widely used online platform in the

industry.

42. The draft National Security Agreement contains several

means of ensuring data security without banning TikTok. All protected

U.S. user data (as defined in the National Security Agreement) would be

safeguarded in the United States under a special corporate structure:

TikTok U.S. Data Security (a new subsidiary of TikTok Inc.). A special

board, with Security Directors whose appointment would be subject to

the U.S. government’s approval, would oversee TikTok U.S. Data

Security, and in turn exclude ByteDance and all of its other subsidiaries

and affiliates from such responsibilities. Further separation between the

27
U.S. TikTok business and ByteDance subsidiaries and affiliates,

including TikTok in the rest of the world, would be achieved by

appointing a U.S.-government-approved Security Director to the board of

TikTok Inc. Protected U.S. user data would be stored in the cloud

environment of a U.S.-government-approved partner, Oracle

Corporation, with access to such data managed by TikTok U.S. Data

Security.

43. The draft Agreement would also protect against the concern

about content manipulation and propaganda. Multiple layers of

protection address concerns related to content available on the TikTok

platform, including ensuring that all content moderation — both human

and algorithmic — would be subject to third-party verification and

monitoring. The concern about content manipulation would also be

addressed by securing all software code through Oracle Corporation, a

U.S. trusted technology provider. The TikTok U.S. platform and

application would be deployed through the Oracle cloud infrastructure

and subject to source code review and vetting by Oracle with another

U.S.-government-approved third party responsible for conducting

security inspections. As part of this process, Oracle and third parties

28
approved by CFIUS would conduct independent inspections of the

TikTok recommendation engine.

44. The draft Agreement also includes strict penalties for

noncompliance, including a “shut-down option,” giving the government

the authority to suspend TikTok in the United States in response to

specified acts of noncompliance. The Agreement also provides significant

monetary penalties and other remedies for noncompliance.

45. Although the government has apparently abandoned the

draft National Security Agreement, Petitioners have not. TikTok Inc.

has begun the process of voluntarily implementing the National Security

Agreement’s provisions to the extent it can do so without the U.S.

government’s cooperation, including by incorporating and staffing the

TikTok U.S. Data Security entity, and by partnering with Oracle

Corporation on the migration of the U.S. platform and protected U.S. user

data to Oracle’s cloud environment.

46. To date, Petitioners have spent more than $2 billion to

implement these measures and resolve the very concerns publicly

expressed by congressional supporters of the Act — all without the

overbroad and unconstitutional method of an outright ban.

29
 Grounds On Which Relief Is Sought

Petitioners seek review of the constitutionality of the Act on

grounds that include, without limitation, the following.

Ground 1: Violation of the First Amendment

47. The First Amendment to the U.S. Constitution provides that

“Congress shall make no law . . . abridging the freedom of speech.” U.S.

Const., amend. I.

48. By banning all online platforms and software applications

offered by “TikTok” and all ByteDance subsidiaries, Congress has made

a law curtailing massive amounts of protected speech. Unlike broadcast

television and radio stations, which require government licenses to

operate because they use the public airwaves, the government cannot,

consistent with the First Amendment, dictate the ownership of

newspapers, websites, online platforms, and other privately created

speech forums.

49. Indeed, in the past, Congress has recognized the importance

of protecting First Amendment rights, even when regulating in the

interest of national security. For example, Congress repeatedly amended

IEEPA — which grants the President broad authority to address national

30
emergencies that pose “unusual and extraordinary threat[s]” to the

country — to expand protections for constitutionally protected materials.

50 U.S.C. §§ 1701–02. Accordingly, under IEEPA, the President does not

have the authority to even indirectly regulate “personal communication”

or the importation or exportation “of any information or informational

materials,” id. § 1702(b)(1), (3) — limitations that are necessary “to

prevent the statute from running afoul of the First Amendment,”

Amirnazmi, 645 F.3d at 585. Yet Congress has attempted to sidestep

these statutory protections aimed at protecting Americans’ constitutional

rights, preferring instead to simply enact a new statute that tries to avoid

the constitutional limitations on the government’s existing statutory

authority. Those statutory protections were evidently seen as an

impediment to Congress’s goal of banning TikTok, so the Act dispensed

with them.

50. The Act’s alternative to a ban — a so-called “qualified

divestiture” — is illusory to the point of being no alternative at all. As

explained above, divesting TikTok Inc.’s U.S. business and completely

severing it from the globally integrated platform of which it is a part is

not commercially, technologically, or legally feasible.

31
 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

not on any proof of a compelling interest, but on speculative and

analytically flawed concerns about data security and content

manipulation — concerns that, even if grounded in fact, could be

addressed through far less restrictive and more narrowly tailored means.

52. Petitioners’ protected speech rights. The Act burdens

TikTok Inc.’s First Amendment rights — in addition to the free speech

rights of millions of people throughout the United States — in two ways.

53. First, Petitioner TikTok Inc. has a First Amendment interest

in its editorial and publishing activities on TikTok. See Hurley v. Irish-

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,

and advertising” of others; TikTok Inc.’s “choice of material” to

recommend or forbid “constitute[s] the exercise of editorial control and

judgment” that is protected by the First Amendment. Miami Herald Pub.

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)

(recognizing TikTok Inc.’s First Amendment editorial rights).

54. As the government itself has acknowledged, “[w]hen [social

media] platforms decide which third-party content to present and how to

present it, they engage in expressive activity protected by the First

Amendment because they are creating expressive compilations of

speech.” Br. for United States as Amicus Curiae at 12–13, Moody v.

NetChoice LLC, No. 22-277 (U.S.), 2023 WL 8600432; see also id. at 18–

19, 25–26.

55. Second, TikTok Inc. is among the speakers whose expression

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

education. 18 When TikTok Inc. does so, it is engaging in core speech

protected by the First Amendment. See Sorrell v. IMS Health Inc., 564

18TikTok (@tiktok), TikTok, https://www.tiktok.com/t/ZTL9QsTYs/ (last

visited May 6, 2024); TikTok (@tiktok), TikTok,
https://www.tiktok.com/t/ZTL9QbSHv/ (last visited May 6, 2024); TikTok
(@tiktok), TikTok, https://www.tiktok.com/t/ZTL9QXE7R/ (last visited
May 6, 2024).
33
U.S. 552, 570 (2011); NetChoice, LLC v. Att’y Gen., Fla., 34 F.4th 1196,

1210 (11th Cir. 2022), cert. granted, 144 S. Ct. 478 (2023). The Act

precludes TikTok Inc. from expressing itself over that platform.

56. Even if the U.S. TikTok platform could be divested, which it

cannot for the reasons explained above, TikTok Inc.’s protected speech

rights would still be burdened. Because the Act appears to conclusively

determine that any application operated by “TikTok” — a term that

Congress presumably meant to include TikTok Inc. — is a foreign

adversary controlled application, Sec. 2(g)(3)(A), the President appears

to lack the power to determine that a TikTok Inc.-owned application is

“no longer being controlled by a foreign adversary” and has no

“operational relationship” with “formerly affiliated entities that are

controlled by a foreign adversary,” Sec. 2(g)(6)(A) & (B). The Act

therefore appears to conclusively eliminate TikTok Inc.’s ability to speak

through its editorial and publishing activities and through its own

account on the TikTok platform.

57. For similar reasons, the Act burdens the First Amendment

rights of other ByteDance subsidiaries to reach their U.S. user audiences,

34
since those companies are likewise prohibited from speaking and

engaging in editorial activities on other ByteDance applications.

58. The Act is subject to strict scrutiny. The Act’s restrictions

on Petitioners’ First Amendment rights are subject to strict scrutiny for

three independent reasons.

59. First, the Act represents a content- and viewpoint-based

restriction on protected speech. The Act discriminates on a content basis

because it exempts platforms “whose primary purpose” is to host specific

types of content: “product reviews, business reviews, or travel

information and reviews.” Sec. 2(g)(2)(B). The Act thus “distinguish[es]

favored speech” — i.e., speech concerning travel information and

business reviews — “from disfavored speech” — i.e., all other types of

speech, including particularly valuable speech like religious and political

content. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 643 (1994).

60. The Act also discriminates on a viewpoint basis because it

appears to have been enacted at least in part because of concerns over

the viewpoints expressed in videos posted on TikTok by users of the

platform. For example, the House Committee Report asserted, without

supporting evidence, that TikTok “can be used by [foreign adversaries] to

35
. . . push misinformation, disinformation, and propaganda on the

American public”19 — a concern that in any event could be raised about

any platform for user-generated content. See infra ¶¶ 82, 87. Similarly,

Rep. Raja Krishnamoorthi, who co-sponsored the Act, expressed the

unsubstantiated concern that “the platform continued to show dramatic

differences in content relative to other social media platforms.”20

61. Second, the Act discriminates between types of speakers. As

explained above, TikTok Inc. is a protected First Amendment speaker

with respect to the TikTok platform. The Act facially discriminates

between TikTok Inc. and other speakers depending on the “primary

purpose” of the platforms they operate. Any application offered by

Petitioners is automatically deemed a “foreign adversary controlled

application,” without any exclusions or exceptions. Sec. 2(g)(3)(A). By

contrast, any other company’s application can be deemed a “foreign

adversary controlled application” only if the company does not operate a

19 House Committee Report at 2.

20 Sapna Maheshwari, David McCabe & Annie Karni, House Passes Bill
to Force TikTok Sale From Chinese Owner or Ban the App, N.Y. Times
(Mar. 13, 2024), https://perma.cc/Z7UE-WYH6.
36
website or application “whose primary purpose is to allow users to post

product reviews, business reviews, or travel information and reviews.”

Sec. 2(g)(2)(B). The Act thus favors speakers that do offer such websites

or applications over speakers that do not.

62. Moreover, the Act singles out TikTok Inc. and other

subsidiaries of ByteDance for unique disfavor in other ways. Whereas

other companies with ownership in a country deemed a “foreign

adversary” become subject to the Act’s restrictions only upon a

presidential determination that the company poses “a significant threat

to the national security of the United States,” Sec. 2(g)(3)(B), ByteDance

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

by the First Amendment and other applicable constitutional protections,

but TikTok Inc. and ByteDance have been singled out for a dramatically

different, even more clearly unconstitutional regime — with no public

notice, no process for a presidential determination that there is a

significant national security threat, no justification of that determination

by a public report and submission of classified evidence to Congress, and

37
no judicial review for statutory and constitutional sufficiency based on

the reasons set forth in the presidential determination. The Act also

draws a speaker-based distinction insofar as it specifically names

ByteDance Ltd. and TikTok, and also exempts applications with fewer

than 1 million monthly users (except if those applications are operated

by ByteDance Ltd. or TikTok). Sec. 2(g)(2)(A)(ii), (3)(A).

63. A statutory restriction targeting specific classes of speakers is

subject to strict scrutiny. See United States v. Playboy Ent. Grp., Inc.,

529 U.S. 803, 812 (2000) (“Laws designed or intended to suppress or

restrict the expression of certain speakers contradict basic First

Amendment principles.”). And that is especially true when, as here, the

Act singles out Petitioners by name for uniquely disfavored treatment

and congressional statements indicate that the Act targets Petitioners in

part because of concerns about the content on TikTok. Because the Act

“target[s]” both “speakers and their messages for disfavored treatment,”

strict scrutiny review is required. Sorrell, 564 U.S. at 565; see also

Turner, 512 U.S. at 658–60.

64. Third, the Act is subject to strict scrutiny as an unlawful prior

restraint. The Supreme Court has “consistently” recognized in a “long

38
line” of cases that government actions that “deny use of a forum in

advance of actual expression” or forbid “the use of public places [for

plaintiffs] to say what they wanted to say” are prior restraints. Se.

Promotions, Ltd. v. Conrad, 420 U.S. 546, 552–53 (1975). “[P]rior

restraints on speech and publication are the most serious and the least

tolerable infringement on First Amendment rights.” Nebraska Press

Ass’n v. Stuart, 427 U.S. 539, 559 (1976). The Act suppresses speech in

advance of its actual expression by prohibiting all U.S. TikTok users —

including Petitioner TikTok Inc. — from communicating on the platform.

See Backpage.com, LLC v. Dart, 807 F.3d 229 (7th Cir. 2015) (defendant’s

conduct restricting the operator of classified advertising website was a

prior restraint); Org. for a Better Austin v. Keefe, 402 U.S. 415, 418–19

(1971) (ban on distributing leaflets a prior restraint); U.S. WeChat Users

All. v. Trump, 488 F. Supp. 3d 912, 926 (N.D. Cal. 2020) (ban on

communications application a prior restraint). The same is true of other

ByteDance subsidiaries and their platforms. Such restrictions “bear[] a

heavy presumption against [their] constitutional validity.” Se.

Promotions, 420 U.S. at 558.

39
 65. The Act fails strict scrutiny because it does not further

a compelling interest. Strict scrutiny “requires the Government to

prove that the restriction [1] furthers a compelling interest and [2] is

narrowly tailored to achieve that interest.” Reed v. Town of Gilbert, 576

U.S. 155, 171 (2015) (numerical alterations added). “If a less restrictive

alternative would serve the Government’s purpose, the legislature must

use that alternative.” Playboy, 529 U.S. at 813. The Act fails on both

counts.

66. The Act does not further a compelling interest. To be sure,

national security is a compelling interest, but the government must show

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

regulation will in fact alleviate these harms in a direct and material

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

40
any legislative findings, much less a demonstration of specific harms that

TikTok supposedly poses in either respect, even though the platform was

first launched in 2017.

68. The statements of congressional committees and individual

Members of Congress during the hasty, closed-door legislative process

preceding the Act’s enactment confirm that there is at most speculation,

not “evidence,” as the First Amendment requires. Instead of setting out

evidence that TikTok is actually compromising Americans’ data security

by sharing it with the Chinese government or spreading pro-China

propaganda, the House Committee Report for an earlier version of the

Act relies repeatedly on speculation that TikTok could do those things.

See, e.g., House Committee Report at 6 (TikTok could “potentially [be]

allowing the CCP ‘to track the locations of Federal employees and

contractors’”) (emphasis added) (quoting Exec. Order 13,942, 85 Fed. Reg.

48637, 48637 (Aug. 6, 2020)); id. at 8 (discussing “the possibility that the

[CCP] could use [TikTok] to control data collection on millions of users”)

(emphasis added); id. (“TikTok has sophisticated capabilities that create

the risk that [it] can . . . suppre[ss] statements and news that the PRC

deems negative”) (emphasis added). Speculative risk of harm is simply

41
not enough when First Amendment values are at stake. These risks are

even more speculative given the other ways that the Chinese government

could advance these asserted interests using a variety of intelligence

tools and commercial methods. See infra ¶¶ 85–87.

69. The conjectural nature of these concerns are further

underscored by President Biden’s decision to continue to maintain a

TikTok account for his presidential campaign even after signing the Act

into law. 21 Congressional supporters of the Act have also maintained

campaign accounts on TikTok. 22 This continued use of TikTok by

President Biden and Members of Congress undermines the claim that the

platform poses an actual threat to Americans.

70. Further, even if the government could show that TikTok or

another ByteDance-owned application “push[es] misinformation,

disinformation, and propaganda on the American public,” House

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.
42
Committee Report at 2, the government would still lack a compelling

interest in preventing Americans from hearing disfavored speech

generated by TikTok users and shared on the platform just because the

government considers it to be foreign “propaganda.” See Lamont v.

Postmaster Gen. of U.S., 381 U.S. 301, 305 (1965).

71. The Act also offers no support for the idea that other

applications operated by subsidiaries of ByteDance Ltd. pose national

security risks. Indeed, the legislative record contains no meaningful

discussion of any ByteDance-owned application other than TikTok — let

alone evidence “proving” that those other applications pose such risks.

Reed, 576 U.S. at 171.

72. The Act also provides neither support nor explanation for

subjecting Petitioners to statutory disqualification by legislative fiat

while providing every other platform, and users of other platforms, with

a process that includes a statutory standard for disqualification, notice,

a reasoned decision supported by evidence, and judicial review based on

those specified reasons. Only Petitioners are subjected to a regime that

has no notice and no reasoned decision supported by evidence — opening

the door to, among other things, post-hoc arguments that may not have

43
been the basis for the government action. The Supreme Court recently

explained that the requirement of a “reasoned explanation” is “meant to

ensure that [the government] offer[s] genuine justifications for important

decisions, reasons that can be scrutinized by courts and the interested

public. Accepting contrived reasons would defeat the purpose of the

enterprise.” Dep’t of Com. v. New York, 139 S. Ct. 2551, 2576 (2019).

Depriving Petitioners of those protections imposes a dramatically heavier

burden on the free speech rights of Petitioners and TikTok users that is

wholly unjustified and certainly not supported by a compelling interest.

73. The Act also fails strict scrutiny because it is not

narrowly tailored. “Even where questions of allegedly urgent national

security . . . are concerned,” the government must show that “the evil that

would result from the [restricted speech] is both great and certain and

cannot be mitigated by less intrusive measures.” CBS, Inc. v. Davis, 510

U.S. 1315, 1317 (1994). To satisfy narrow tailoring, the Act must

represent the least restrictive means to further the government’s

asserted data security and propaganda interests, Sable Commc’ns of Cal.,

Inc. v. FCC, 492 U.S. 115, 126 (1989), and be neither over- nor under-

44
inclusive, Ark. Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 232 (1987).

The Act fails in each of these respects.

74. The Act opts for a wholesale prohibition on Petitioners

offering online applications in lieu of a multitude of less restrictive

measures it could have taken instead. As discussed above, Petitioners

have been involved in negotiations with CFIUS since 2019 over a package

of measures that would resolve the government’s concerns about data

security and purported propaganda related to TikTok. The terms of that

negotiated package are far less restrictive than an outright ban. The

negotiations have resulted in the draft National Security Agreement,

which TikTok Inc. is already in the process of voluntarily implementing

to the extent it can do so without government action. That initiative

includes a multi-billion-dollar effort to create a new TikTok U.S.

subsidiary devoted to protecting U.S. user data and have U.S.-based

Oracle Corporation store protected U.S. TikTok user data in the United

States, run the TikTok recommendation system for U.S. users, and

inspect TikTok’s source code for security vulnerabilities.

75. If executed by the government, the National Security

Agreement would also give CFIUS a “shut-down option” to suspend

45
TikTok in the United States in response to specified acts of

noncompliance. The government has never meaningfully explained why

the National Security Agreement (a far less restrictive alternative to an

outright, total ban) is insufficient to address its stated concerns about

data security and propaganda.

76. Even if the government’s dissatisfaction with the draft

National Security Agreement were valid (despite the government never

explaining why the agreement that the government itself negotiated is

unsatisfactory), the CFIUS process in which Petitioners have

participated in good faith is geared toward finding any number of other

less restrictive alternatives to an outright, total ban. The CFIUS member

agencies could return to working with Petitioners to craft a solution that

is tailored to meet the government’s concerns and that is commercially,

technologically, and legally feasible. Yet the government has not

explained why the CFIUS process is not a viable alternative.

77. There are also a wide range of other less restrictive measures

that Congress could have enacted. While many of these measures are

themselves unjustified as applied to Petitioners, they nevertheless

illustrate that the Act does not select the least restrictive means to

46
further the national security goals that appear to have motivated it. For

example, Congress could have addressed some members’ stated concern

about TikTok allegedly “track[ing] the locations of Federal employees and

contractors”23 by expanding the existing ban on government-owned

devices to cover personal devices of federal employees and contractors.

Or Congress could have enacted legislation to regulate TikTok’s access to

certain features on users’ devices — measures the Department of

Homeland Security identified in 2020 as potential mitigations to “reduce

the national security risks associated with” TikTok. 24

78. Of course, Congress could also have decided not to single out

a single speech platform (TikTok) and company (ByteDance Ltd.), and

instead pursued any number of industry-wide regulations aimed at

addressing the industry-wide issues of data security and content

integrity. Congress could have enacted a data protection law governing

transfers of Americans’ sensitive data to foreign countries, similar to the

23 House Committee Report at 6.

24 Cybersecurity and Infrastructure Agency, Critical Infrastructure
Security and Resilience Note, Appendix B: Department of Homeland
Security TikTok and WeChat Risk Assessment 4 (Sept. 2, 2020).
47
strategy President Biden is currently pursuing through executive

order.25 Indeed, Congress did enact such a data-transfer law — the

similarly named “Protecting Americans’ Data from Foreign Adversaries

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]

available personally identifiable sensitive data of a United States

individual to any foreign adversary country or . . . any entity that is

controlled by a foreign adversary.” H.R. 815, div. I, § 2(a), 118th Cong.,

Pub. L. No. 118-50 (Apr. 24, 2024).

79. There are also models for industry-wide regulation that

Congress could have followed from other jurisdictions. For example, the

European Union’s Digital Services Act requires certain platforms to

make disclosures about their content-moderation policies and to provide

regulators and researchers with access to their data so those researchers

can assess if the platforms are systemically promoting or suppressing

25 See Exec. Order 14,117, 89 Fed. Reg. 15421 (Mar. 1, 2024).

48
content with particular viewpoints.26 Congress pursued none of these

alternatives.

80. Congress did not even provide Petitioners with the process

and fact-finding protections that the Act extends to all other companies

— protections which themselves likely fall short of what the Constitution

mandates. Other companies receive prior notice, followed by a

presidential determination of (and public report on) the national security

threat posed by the targeted application, and the submission to Congress

of classified evidence supporting that determination, Sec. 2(g)(3)(B),

which then is subject to judicial review based on the actual reasons for

the decision, not post hoc rationalizations.

81. Because Congress failed to try any of these less restrictive

measures, or at a minimum to explain why these alternatives would not

address the government’s apparent concerns, the Act is not narrowly

tailored.

82. The Act independently fails strict scrutiny because it is

both under- and over-inclusive. The Act is under-inclusive because it

26 EU Reg. 2022/2065 arts. 15, 40(4), 42(2).

49
ignores the many ways in which other companies — both foreign and

domestic — can pose the same risks to data security and promotion of

misinformation supposedly posed by Petitioners. The government

“cannot claim” that banning some types of foreign owned applications is

“necessary” to prevent espionage and propaganda “while at the same

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

“[u]nderinclusiveness raises serious doubts about whether the

government is in fact pursuing the interest it invokes, rather than

disfavoring a particular speaker or viewpoint.” Brown v. Ent. Merchants

Ass’n, 564 U.S. 786, 802 (2011).

83. Most glaringly, the Act applies only to Petitioners and certain

other platforms that allow users to generate and view “text, images,

videos, real-time communications, or similar content.” Sec. 2(g)(2)(A).

The Act’s coverage is thus triggered not by whether an application

collects users’ data, but whether it shows them “content.” Accordingly,

there is no necessary relationship between the Act’s scope and Congress’s

apparent concern with risks to Americans’ data security, which could

50
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

companies that operate any website or application “whose primary

purpose is to allow users to post product reviews, business reviews, or

travel information and reviews.” Sec. 2(g)(2)(B). But the Act does not

explain why such applications, when (i) “foreign adversary controlled”

under the Act’s broad definition; and (ii) determined by the President to

be a significant national security threat, could not likewise be used to

collect data from Americans — such as Americans’ location information

— or to spread misinformation. Nor does the Act explain why an entire

company presents no threat simply because it operates a single website

or application the “primary purpose” of which is posting “product reviews,

business reviews, or travel information and reviews.” Sec. 2(g)(2)(B).

The Act’s differential treatment of this favored category of websites and

applications also disregards the fact that there is voluminous content on

TikTok containing product reviews, business reviews, and travel

information and reviews. Yet TikTok and all ByteDance applications are

ineligible for this exclusion.

51
 85. More broadly, the Act ignores the reality that much of the

data collected by TikTok is no different in kind from the data routinely

collected by other applications and sources in today’s online world,

including by American companies like Google, Snap, and Meta. The Act

also ignores that foreign countries, including China, can obtain such

information on Americans in other ways — such as through open-source

research and hacking operations.

86. Likewise, the House Committee Report on an earlier version

of the Act speculates that allowing source code development in China

“potentially exposes U.S. users to malicious code, backdoor

vulnerabilities, surreptitious surveillance, and other problematic

activities tied to source code development.” 27 But those supposed risks

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

offices in China or that otherwise employ Chinese nationals as software

developers. 28

27 House Committee Report at 5.

28 See, e.g., Karen Freifeld & Jonathan Stempel, Former Google Engineer
52
 87. Nor does the Act seek to cut off numerous other ways that

Americans could be exposed to foreign propaganda. For instance, the Act

leaves foreign nationals (and even adversarial governments themselves)

free to operate cable television networks in the United States, spread

propaganda through accounts on other online platforms that enable the

sharing of user-generated content, or distribute copies of state-run

newspapers physically or over the Internet (including by software

applications) in the United States. 29

Indicted for Stealing AI Secrets to Aid Chinese Companies, Reuters

(Mar. 6, 2024), https://perma.cc/6LYE-64J6.
29 The U.S. government has recognized that foreign government
propaganda is an industry-wide challenge for online platforms. See, e.g.,
Nat’l Intel. Council, Declassified Intelligence Community Assessment,
Foreign Threats to the 2020 US Federal Elections (Mar. 10, 2021),
https://perma.cc/VD3Y-VXSB. YouTube, for example, added disclaimers
to certain channels that were reportedly being used to spread
disinformation on behalf of the Russian government. Paresh Dave &
Christopher Bing, Russian Disinformation on YouTube Draws Ads,
Lacks Warning Labels - Researchers, Reuters (June 7, 2019),
https://perma.cc/2BEJ-VKGW. Like others in the industry, TikTok
publishes transparency reports on attempts by users to use the platform
for government propaganda purposes. See TikTok, Countering Influence
Operations (last visited May 6, 2024), https://perma.cc/AB39-S8FJ.
53
 88. The Act is also over-inclusive because it applies to other

ByteDance Ltd.-owned applications that Congress has not shown — and

could not possibly prove — pose the risks the Act apparently seeks to

address.

89. At a minimum, the Act fails intermediate scrutiny. Even

if strict scrutiny did not apply, the Act would still fail intermediate

scrutiny as a time, place, and manner restriction: the Act prohibits

speech activity on TikTok at all times, in all places, and in all manners

anywhere across the United States. To pass intermediate scrutiny, a law

must be “narrowly tailored to serve a significant governmental interest.”

McCullen v. Coakley, 573 U.S. 464, 486 (2014). This means that it must

not “burden substantially more speech than is necessary to further the

government’s legitimate interests,” Turner, 512 U.S. at 661–62, and

“leave open ample alternative channels for communication of the

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

scrutiny, it also cannot satisfy intermediate scrutiny:

54
 91. As discussed supra ¶¶ 67–69, the government has failed to

establish that its apparent data security and propaganda concerns with

TikTok are non-speculative. And as discussed supra ¶¶ 73–81, the Act

burdens substantially more speech than necessary because there are

many less restrictive alternatives Congress could have adopted to

address any legitimate concerns. The Act also fails intermediate scrutiny

because it “effectively prevents” TikTok Inc. “from reaching [its] intended

audience” and thus “fails to leave open ample alternative means of

communication.” Edwards v. City of Coeur d’Alene, 262 F.3d 856, 866

(9th Cir. 2001).

92. Regardless of the level of scrutiny, the Act violates the First

Amendment for two additional reasons.

93. The Act forecloses an entire medium of expression. First,

by banning TikTok in the United States, the Act “foreclose[s] an entire

medium of expression.” City of Ladue v. Gilleo, 512 U.S. 43, 56 (1994). A

“long line of Supreme Court cases indicates that such laws are almost

never reasonable.” Anderson v. City of Hermosa Beach, 621 F.3d 1051,

1064–65 (9th Cir. 2010).

55
 94. The Act is constitutionally overbroad. Second, the Act is

facially overbroad. A law is “overbroad if a substantial number of its

applications are unconstitutional, judged in relation to the statute’s

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

other ByteDance-owned application) represents disinformation,

misinformation, or propaganda. Yet the Act shuts down all speech on

ByteDance-owned applications at all times, in all places, and in all

manners. That is textbook overbreadth. See, e.g., Bd. of Airport Comm’rs

v. Jews for Jesus, Inc., 482 U.S. 569, 574–75 (1987).

Ground 2: Unconstitutional Bill of Attainder

95. The Act is an unconstitutional bill of attainder.

96. Article I of the U.S. Constitution prohibits Congress from

passing any bill of attainder. U.S. Const. art. I § 9, cl. 3 (“No Bill of

Attainder or ex post facto Law shall be passed.”). A bill of attainder is

“legislative punishment, of any form or severity, of specifically

designated persons or groups.” United States v. Brown, 381 U.S. 437, 447

(1965). The protection against bills of attainder is “an implementation of

56
the separation of powers, a general safeguard against legislative exercise

of the judicial function, or more simply — trial by legislature.” Id. at 442.

97. By singling out Petitioners for legislative punishment, the Act

is an unconstitutional bill of attainder.

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”

included “punitive confiscation of property by the sovereign” and “a

legislative enactment barring designated individuals or groups from

participation in specified employments or vocations,” among others. Id.

As described above, the Act confiscates Petitioners’ U.S. businesses by

forcing ByteDance to shutter them within 270 days or sell on terms that

are not commercially, technologically, or legally feasible. See supra

¶¶ 26‒29. For the same reason, the Act bars Petitioners from operating

in their chosen line of business.

99. “[V]iewed in terms of the type and severity of burdens

imposed” on Petitioners, the Act’s treatment of Petitioners cannot

“reasonably . . . be said to further nonpunitive legislative purposes.”

Nixon, 433 U.S. at 475–76. The Act transforms Petitioners into a “vilified

57
class” by explicitly prohibiting their current and future operations in the

United States, without qualification or limitation, but does not extend

the same treatment to other similarly situated companies. Foretich v.

United States, 351 F.3d 1198, 1224 (D.C. Cir. 2003).

100. Moreover, in light of the less restrictive alternatives discussed

above, there is no justification for automatically barring Petitioners’

current and future operations in the United States (or those of its

subsidiaries or successors) in perpetuity without providing them a

meaningful opportunity to take corrective action. See Kaspersky Lab,

Inc. v. U.S. Dep’t of Homeland Sec., 909 F.3d 446, 456 (D.C. Cir. 2018).

Indeed, the Act imposes this punishment uniquely on Petitioners without

the process, and presidential determination of a significant national

security threat, that Congress has afforded to everyone else. Expressly

singling out Petitioners for these punitive burdens while at the same time

adopting a statutory standard and decision-making process applicable to

every other entity makes clear that Petitioners are subjected to a

prohibited legislatively imposed punishment.

101. Moreover, while Petitioners can avoid the Act’s prohibitions

only via a wholesale divestment, all other companies — even those with

58
Chinese ownership and determined by the President to present a

“significant threat” to U.S. national security — can avoid prohibition

simply by operating a website or an application “whose primary purpose

is to allow users to post product reviews, business reviews, or travel

information and reviews.” Sec. 2(g)(2)(b).

102. Indeed, any other “adversary-controlled” company that

operates an application exactly like TikTok, but also operates a website

the primary purpose of which is to post product reviews, is left untouched,

leaving a ready path for any company but those affiliated with

Petitioners to circumvent the Act’s prohibitions altogether. For all

practical purposes, then, the Act applies to just one corporate group — it

is a “TikTok bill,” as congressional leaders have described it. 30

103. For all of these reasons, the Act constitutes an

unconstitutional bill of attainder.

30Rachel Dobkin, Mike Johnson’s Letter Sparks New Flood of Republican

Backlash, Newsweek (Apr. 17, 2024), https://perma.cc/Z5HD-7UVU
(quoting letter from Speaker Johnson referencing the “TikTok bill”);
Senator Chuck Schumer, Majority Leader, to Colleagues (Apr. 5, 2024),
https://perma.cc/J7Q4-9PGJ (referencing “TikTok legislation”).
59
 Ground 3: Violation of Equal Protection

104. The Act also violates Petitioners’ rights under the equal

protection component of the Fifth Amendment’s Due Process Clause

because it singles Petitioners out for adverse treatment without any

reason for doing so.

105. First, the Act deems any application offered by Petitioners to

be a “foreign adversary controlled application” without notice or a

presidential determination. Sec. 2(g)(3)(A). By contrast, applications

offered by other companies “controlled by a foreign adversary” are

deemed to be “foreign adversary controlled applications” only after notice

and a presidential determination that those companies present

“significant threat[s]” to U.S. national security, a determination that

must be supported by evidence submitted to Congress. Sec. 2(g)(2)(B);

see supra ¶ 34(d).

106. That distinction imposes a dramatically heavier burden on

Petitioners’ free speech rights without any justification. The Act

precludes the government from burdening the speech rights of any

speakers other than Petitioners unless and until the President issues a

public report on the specific national security concerns animating the

60
President’s decision, provides support for that decision, and describes the

assets requiring divestiture. Those protections ensure that the President

must, at the very least, provide a detailed national security justification

for his or her actions before burdening other speakers’ speech — a

justification that then will provide the basis for judicial review. The Act

imposes none of those requirements as a precondition for burdening

Petitioners’ speech — it levies that burden by unexplained legislative

fiat.

107. Second, the Act denies Petitioners the exemption available to

any other company that is purportedly “controlled by a foreign

adversary.” As noted, any application Petitioners offer is ipso facto

deemed a “foreign adversary controlled application.” By contrast, other

companies “controlled by a foreign adversary” are exempt from the Act’s

definition of a “covered company,” and thus from the Act’s requirements,

so long as they offer at least one application with the “primary purpose”

of “allow[ing] users to post product reviews, business reviews, or travel

information and reviews.” Sec. 2(g)(2)(B).

108. There is no conceivable reason for treating Petitioners

differently than all other similarly situated companies. Even if Congress

61
had valid interests in protecting U.S. users’ data and controlling what

content may be disseminated through global platforms that would be

advanced through the Act, there is no reason why those concerns would

support a ban on Petitioners’ platforms without corresponding bans on

other platforms. Nor is there any rational reason why Congress would

ban Petitioners’ platforms while allowing any other company “controlled

by a foreign adversary” — regardless of the national security threat posed

by that company — to sidestep the Act’s reach by simply offering an

application that “allows users to post product reviews, business reviews,

or travel information and reviews,” but changing nothing else about the

company’s operations, ownership structure, or other applications.

109. By treating Petitioners differently from others similarly

situated, the Act denies Petitioners the equal protection of the law.

Ground 4: Unconstitutional Taking

110. The Act effects an unlawful taking of private property without

just compensation, in violation of the Fifth Amendment’s Takings Clause.

111. The Takings Clause provides that “private property” shall not

be “taken for public use, without just compensation.” U.S. Const.

amend. V, cl. 5. The Act does just that by shutting down ByteDance’s

62
U.S. businesses or, to the extent any qualified divestiture alternative is

even feasible (it is not), compelling ByteDance to sell those businesses

under fire-sale circumstances that guarantee inadequate compensation.

112. Petitioners have substantial property interests in, and

associated with, their and their affiliates’ U.S. operations. These include

not only ByteDance Ltd.’s interest in TikTok Inc. and other U.S.

businesses, but also the platforms and applications themselves. See

Kimball Laundry Co. v. United States, 338 U.S. 1, 11–13 (1949) (Takings

Clause also protects losses to going-concern value of business).

113. If the Act’s prohibitions take effect, they will deprive

Petitioners of property protected by the Takings Clause. Absent a

qualified divestiture, the Act will shutter Petitioners’ businesses in the

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

it is commonly understood, has no applicability in the forced-sale context;

indeed, it is the very antithesis of forced-sale value.”).

63
 114. Because the Act compels ByteDance “to relinquish specific,

identifiable property” or forfeit “all economically beneficial uses,” the Act

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).

115. Alternatively, the Act inflicts a regulatory taking. Even when

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

“several factors” identified in Penn Central Transportation Co. v. City of

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

with reasonable investment-backed expectations”; and (c) “the character

of the governmental action.” The Act inflicts a regulatory taking under

each of these three factors.

116. The Act does not compensate Petitioners (let alone provide

just compensation) for the dispossession of their U.S. businesses. See

United States v. Miller, 317 U.S. 369, 373 (1943). Prospective injunctive

64
relief is accordingly warranted. See, e.g., Youngstown Sheet & Tube Co.

v. Sawyer, 343 U.S. 579, 585 (1952).

Requested Relief

Petitioners respectfully request that this Court grant the following

relief:

A. Issue a declaratory judgment that the Act violates the U.S.

Constitution;

B. Issue an order enjoining the Attorney General from enforcing

the Act;

C. Enter judgment in favor of Petitioners; and

D. Grant any further relief that may be appropriate.

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DATED: May 7, 2024 Respectfully submitted,

/s/ Alexander A. Berengaut

Andrew J. Pincus Alexander A. Berengaut
Avi M. Kupfer David M. Zionts
MAYER BROWN LLP Megan A. Crowley
1999 K Street, NW COVINGTON & BURLING LLP
Washington, DC 20006 One CityCenter
Telephone: 202-263-3220 850 Tenth Street, NW
Email: Washington, DC 20001
apincus@mayerbrown.com Telephone: (202) 662-6000
akupfer@mayerbrown.com Email: aberengaut@cov.com
dzionts@cov.com
mcrowley@cov.com

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: jhall@cov.com
alinderot@cov.com

Counsel for Petitioners

66