The U.S. government and TikTok are fighting over who should be able to see secret evidence at the core of the government's push to ban the popular social media app.
For more than four years, federal officials in Washington have outlined a case against TikTok in broad and general terms: that since the app’s parent company, ByteDance, is based in China, TikTok’s algorithm and data-collection practices could potentially be weaponized by the Chinese Communist Party.
But when pressed for specific examples of this, or smoking-gun evidence that China would manipulate what TikTok’s 170 million Americans view every day, the government cites none. Instead, in a recent filing the Justice Department relies on unspecified fears that “ByteDance could be expected to comply with demands by the Chinese government to manipulate the algorithm,” referring to laws in China that would leave TikTok no choice but to bend to the demands of Beijing.
On Thursday, TikTok’s lawyers filed a new submission in its lawsuit against the Biden administration seeking to halt the law that would shut down the app by January unless it is sold. In it, TikTok’s legal team asks for a “special master” to be appointed to sift through the government’s classified materials about TikTok.
TikTok has estimated that up to 30% of certain government filings have been redacted.
“The government then faces a choice: comply with the procedures, or withdraw the secret evidence,” TikTok’s lawyers wrote in the Thursday filing.
Justice Department lawyers are fighting back, arguing that a special master, who would be a federal judge, would cause delay in a case that needs to be resolved quickly.
A three-judge federal appeals court panel in Washington is set to rule on the issue in the coming weeks.
Former Justice Department officials say the law will likely be on the government’s side in keeping the classified material about TikTok secret, but underscore the necessity for the public to know why the hugely popular app is being targeted.
“It’s about the public’s legitimate interest in being informed about the nature of the threat posed by Chinese ownership of the app,” said Carrie Cordero, a former Justice Department national security lawyer. “On that front, from a policy perspective, Congress should have required more transparency before passing the law. But it didn't.”
Andrew Weissmann, who served as a lead prosecutor in Robert Mueller’s Special Counsel Office, agrees that even if there is a principled case to be made for the public knowing the full case against TikTok, the app is going to have an uphill battle.
“The law in general is very favorable to the government if they can assert that something would affect the public’s national security interest,” Weissmann said. “The problem is, when someone’s rights are affected, the courts should play a role in assuring that the government’s assertions are factually supported and not overbroad.”
The DOJ has a counter proposal. Rather than appoint a special master, they recommend a one-sided approach called “ex parte,” where the secret evidence would be viewed only by the federal court and not TikTok.
“The classified information discussed in the government’s brief provides the additional, highly sensitive, and non-public context and grounding that helped Congress and the executive branch properly evaluate the magnitude and gravity of those publicly articulated risks. This Court should have the same opportunity,” the Justice Department wrote earlier this month in a court filing.
What’s more, the Justice Department argues that declassifying the evidence could cause “exceptionally grave” damage to American national security.
TikTok says it has spent more than $2 billion on a plan U.S. officials signed off on in 2022, but had never finally approved, known as Project Texas, aimed at allaying Washington’s national security concerns by tapping Austin-based software company Oracle to supervise the app’s data.
The company insists that with Project Texas in place, the TikTok Americans use cannot be meddled with by ByteDance employees. The Justice Department says this is not true.
According to the Justice Department, TikTok has gathered data on American users’ opinions on issues like gun control and abortion. And the company has shared that data with ByteDance employees in China. Justice officials also say Beijing-based employees can tinker with TikTok’s algorithm and amplify content.
Weissmann, the former Mueller prosecutor who was also the former general counsel for the FBI, said the Justice Department is requesting that the court view what Congress saw in classified briefings. Whether any of that material can be viewed by TikTok, or the public, will not be up to a three-judge panel.
“Whether something is a state secret should not be unilaterally decided by the government, but the courts,” he said. “But that doesn’t mean the public should be entitled to it.”
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