Full text translation: TikTok, ByteDance v. U.S. Attorney General

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2024-05-10 22:14Posted on the official account of Beijing LatePost

Full text translation: TikTok, ByteDance v. U.S. Attorney General

TikTok appealed, asking the court to review the constitutionality of the bill.

Translator and proofreader丨Intern Xu Yumeng

Editor丨Gong Fangyi

On April 24 this year, Biden signed TikTok's "ban if you don't sell" bill, and the 270-day countdown was officially launched.

In response, China's Ministry of Foreign Affairs said that the passage of the bill puts the United States on the opposite side of the principle of fair competition and international economic and trade rules.

Two weeks later, TikTok and ByteDance filed a complaint with the U.S. Court of Appeals for the District of Columbia Circuit — a new round of the showdown that began four years ago.

In the complaint, TikTok and ByteDance retraced the incident in detail, questioned the constitutionality of the ban and gave arguments, asking the US court to rule that the bill passed by the US Congress is unconstitutional and prevent the US Department of Justice from implementing the ban. And this may well be just the first step in a long court conflict.

We translated the legal document in its entirety and edited it appropriately without altering the original intent to present the narrative of TikTok and ByteDance as fully as possible.

Strictly speaking, this legal instrument is a "petition" because its core appeal is to ask the court to decide that the bill is unconstitutional and lift the ban. This is different from the previous case of Huawei v. U.S. government, when Huawei initiated a lawsuit and explicitly demanded compensation. We have retained the original legal documents such as "petition" and "petitioner" in the translation.

Below is a full translation of the TikTok and ByteDance petition.

U.S. Court of Appeals for the District of Columbia Circuit

The petitioners are TikTok Inc. and ByteDance Ltd

sue

Defendant Merrick Garland, in his official capacity as U.S. Attorney General

Request for constitutional review of the Act to Protect U.S. Persons from Foreign Adversary Control Applications

1. For the first time in history, Congress explicitly named and banned TikTok, a vibrant online forum used by 170 million Americans for protected speech and the creation, sharing, and viewing of videos on the Internet. For the first time in congressional history, a law would require a permanent, nationwide ban on a specific, named platform, prohibiting all Americans from participating in a one-of-a-kind online community with more than 1 billion users.

2. This law – the Protection of U.S. Persons from Foreign Adversary Control Applications Act (the "Act") – is unconstitutional. Banning TikTok is clearly unconstitutional. In fact, even the bill's drafters recognized this reality, so they went out of their way to describe the law as not a ban, but a jurisdiction over TikTok ownership. According to the drafters, the bill is a response to the ultimate ownership of ByteDance Limited. The company has subsidiaries in China whose employees support ByteDance's various businesses, including TikTok. They claim that the bill is not a ban because it gives ByteDance options: sell TikTok's business in the United States, or shut it down.

3. But in reality, there is no choice. In order for TikTok to continue operating in the United States, the "qualified divestiture" required by the bill is simply not feasible: it is not commercially, technically, or legally, especially within the 270-day period required by the bill. The petitioner has explained this to the United States Government on several occasions, and the drafters of the bill have realized that divestiture is not feasible. There is no doubt that the bill will force the shutdown of TikTok on January 19, 2025, and 170 million U.S. users will no longer be able to communicate in this place that cannot be replicated elsewhere.

4. Of course, even if a "qualified divestiture" is possible, the bill is still an extreme and unconstitutional exercise of power. If the bill is upheld, it will allow the government to decide that a company can no longer own and publish the innovative and unique platform it has created. If Congress could do that, it could circumvent the First Amendment on national security grounds and require the publisher of any newspaper or website to sell itself to avoid being shut down. For TikTok, such a divestiture would cut Americans off from other communities around the world that share content — an outcome that is fundamentally inconsistent with the Constitution's commitment to free speech and personal liberty.

5. There is a good reason why Congress has never passed a similar law. The United States has long advocated for a free and open Internet under the First Amendment's protections for free speech — and the Supreme Court has repeatedly recognized that Internet-transmitted speech is fully protected by the First Amendment. 303 Creative Ltd. v. Ellines, 600 U.S. 570, 587 (2023). In accordance with the Prohibition of Unlawful Conviction and the Fifth Amendment's principles of fair and equal treatment, Congress has never created a dual speech regime against a given platform.

6. In contrast to past legislation designed to regulate constitutionally protected activities, Congress has passed these extreme measures without any legislative basis. The bill does not spell out any of the threats TikTok could pose, nor does it explain why TikTok should be excluded from the standards that Congress has set at the same time as it applies to all other platforms. Even individual statements reported by members of Congress and congressional committees only indicate that they are concerned about the assumption that TikTok could be misused in the future, but there is no concrete evidence – despite the fact that TikTok has been operating prominently in the United States since it was first launched in 2017. When First Amendment rights are threatened, such speculative concerns fall far short of what they are called for.

7. There is also no indication that Congress has considered other alternatives, such as a framework that the petitioner has been working with the government department and has been developing since 2019 to address government concerns about the security of U.S. user data and the impact of foreign governments on platform content.

8. As part of this engagement, petitioners volunteered more than $2 billion to establish the Texas Project, a system of technical and regulatory safeguards to help protect U.S. user data and prevent foreign governments from compromising the integrity of the U.S. TikTok platform. The petitioners also made specific commitments in the 90-page draft national security agreement that emerged from negotiations with the Committee on Foreign Investment in the United States (CFIUS), including agreeing to give the government the right to suspend TikTok operations in the United States in the event of a breach of certain obligations under the agreement.

9. Congress has abandoned this customized agreement in favor of a more politicized, targeted approach to punishment against individual publishers and speakers (TikTok Inc.), individual speech forums (TikTok), and its ultimate owner (ByteDance Limited). Through the bill's dual structure, Congress explicitly rejects a responsible industry regulation, exposing its punitive, discriminatory purpose. Congress has provided a path for any other company — no matter how serious the national security threat it poses — to avoid the ban, excluding TikTok Inc. In fact, if any other company's app were to be banned, Congress would force the release of a report with specific national security concerns, along with relevant evidence. As for the petitioner, there is no reason or evidence at all. All discussions about the ban were held in secret.

10. Even if it claims to protect national security, Congress must abide by the Constitution: "The principle of the right to freedom of expression remains unchanged in the face of these and other threats." Abrams v. United States, 250 U.S. 616, 628 (1919) (dissenting Holmes J.). In this case, Congress failed to do so, and the bill should be banned.

Statement of Jurisdiction

11. Pursuant to Sections 3(a) and 3(b) of the Act, H.R. 815, Subpart H, 118th Congress, Public Law Nos. 118-50 (April 24, 2024), this Court has original and exclusive jurisdiction over this claim challenging the constitutionality of the Act.

Background and nature of the procedure

A. TikTok is a speech platform used by 170 million Americans.

12. TikTok is an online video entertainment platform that aims to provide a creative and fun forum for users to express themselves and connect with others. Every month, more than 170 million Americans use TikTok to learn and share everything from entertainment to religion to politics and more. Content creators use TikTok to express their opinions, discuss political views, support candidates, and speak to one billion people around the world on many of today's pressing issues. Many creators also use the platform to post product reviews, business reviews, travel information, and reviews.

13. In the United States, the TikTok platform is provided by TikTok Inc., a California-based company headquartered in Culver City, California, with offices in New York, San Jose, Chicago, Miami, and more. TikTok Inc. has thousands of employees in the United States. Like many globally operating companies, the TikTok global platform is supported not only by these employees, but also by employees from other ByteDance subsidiaries around the world, including Singapore, the United Kingdom, Brazil, Germany, South Africa, Australia, and China. Many of the features of TikTok's global platform are spread across different corporate entities and countries. TikTok's global business is handled 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. The ultimate parent company of TikTok Inc. is ByteDance Limited, a holding company registered in the Cayman Islands. ByteDance was founded in 2012 by Chinese entrepreneurs. Over time, the company sought funding to fuel growth, which is common in the tech industry, and ended up issuing more shares and diluting existing shares. Currently, about 58% of ByteDance Limited is held by global institutional investors (such as Blackstone, General Atlantic, and Susquehanna International Group), 21% by founders (Chinese nationals currently living in Singapore), and 21% by employees, of whom about 7,000 are Americans.

15. ByteDance launched TikTok in May 2017 in more than 150 countries around the world, including the United States. Since its release, TikTok has become one of the most popular apps in the world, with over 1 billion users worldwide. As of January 2024, TikTok has over 170 million monthly active users in the United States.

16. Users primarily browse content on TikTok's For You page, which features a series of videos based on TikTok's proprietary recommendation engine. The recommendation engine tailors each user's content page based on how they interact with the content they watch. TikTok's popularity largely depends on the effectiveness of the recommendation engine. The source code for TikTok's recommendation engine was originally developed by ByteDance engineers in China and customized for TikTok's global markets, including the U.S. market. TikTok does not operate in Chinese mainland.

17. In addition to TikTok, ByteDance has developed and operated more than a dozen other online platforms and apps for U.S. and international markets, including content sharing, video and music editing, e-commerce, gaming, and corporate productivity tools.

B. 政府此前尝试非法封禁 TikTok。

18. The petitioner began in 2019 to address the concerns raised by the U.S. government regarding the TikTok platform. That's when the petitioners began engaging with the Committee on Foreign Investment in the United States (CFIUS), which began a review of another internet-based video-sharing platform, Musical.ly, which ByteDance Ltd. acquired in 2017.

19. 请愿人在早期就自愿与 CFIUS 接洽以解决政府的担忧。 2020 年 8 月 6 日，特朗普总统突然发布了一项行政命令，试图根据《国际紧急经济权力法》（“IEEPA”），50 U.S.C. §§ 1701-08，封禁 TikTok。见 85 Fed. Reg. 48,637（“禁令”）。两个地区法院初步禁止了禁令，得出的结论（其中包括）是它超出了总统的 IEEPA 权限。见 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. These courts have expressly recognized that the President's IEEPA authority "to deal with any unusual and unconventional threat to the state" "does not include (any) direct or indirect ... Restrict personal communications or the right to import or export any information or information materials. ” 50 U.S.C. § 1702（b）（1）, （3）。 These limitations on the President's IEEPA authority — which Congress has extended through multiple amendments to the bill — are intended to "prevent the bill from violating the First Amendment." United States v. Amirnazmi, 645 F.3d 564, 585 (3d Cir. 2011) (citation omitted); See Kalantari v. NITV, Inc., 352 F.3d 1202, 1205 (9th Cir. 2003) (IEEPA restriction is "to prevent the executive branch from restricting the international movement of First Amendment-protected materials"); Marland, 498 F. Supp. 3d at 629 (same).

21. 参照 IEEPA 的文本和立法历史中规定的第一修正案原则，这些法院认定特朗普总统封禁 TikTok 的尝试违反了该法，并提出了 “严重的” 宪法问题（根据宪法回避原则不需要作出裁决）。 TikTok Inc., 507 F. Supp. 3d at 112 n.6；TikTok Inc., 490 F. Supp. 3d at 83 n.3。拜登总统撤销禁令后，法院批准政府的动议自愿撤回其上诉。见 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. On the other hand, in response to CFIUS's recommendations, President Trump issued an order under Section 721 of the Defense Production Act, 50 U.S.C. § 4565, directing ByteDance to withdraw TikTok's U.S. operations and U.S. user data. See 85 Fed. Reg. 51,297 ("Divestment Order"). On November 10, 2020, the petitioner filed an application with this court to review the divestment order and CFIUS's related actions, pointing out that the government lacked jurisdiction under the Act. See TikTok Inc. v. CFIUS Review Petition, No. 20-1444 (D.C. Cir. Nov. 10, 2020）。 In February 2021, the court set the petition aside on a joint motion of the parties to allow the parties to negotiate a settlement. The government has since filed status reports every 60 days, most recently on April 22, 2024. The reports have consistently stated that "the parties continue to negotiate" and that "it remains appropriate to put it on hold". See the State Report of TikTok Inc. v. CFIUS, No. 20-1444 (D.C. Cir. Apr. 22, 2024）。

23. Between January 2021 and August 2022, the petitioners engaged in intensive, fact-based advancement with CFIUS to develop a national security agreement and also resolve CFIUS' outstanding disputes. During this period, the petitioner was in regular communication with government officials. Usually several times a week, including several face-to-face meetings, to discuss the government's concerns and potential solutions. The end result is a draft national security agreement of about 90 pages long with detailed annexes containing comprehensive solutions to address the government's national security concerns. Notably, the draft national security agreement stipulates that all protected U.S. user data (as defined by the agreement) will be stored in the cloud environment of Oracle Corporation, a U.S. government-approved partner, and TikTok's source code will be reviewed and audited by it.

24. In the Petitioner's view, there is every indication that they are approaching a final agreement. However, after August 2022, CFIUS stopped substantive discussions with the petitioners on the national security agreement without explanation. The petitioner repeatedly asked why the discussion had been terminated and how it could be restarted, but had received no substantive response. In March 2023, CFIUS insisted that ByteDance divest its TikTok business in the U.S. without providing any reason why the draft national security agreement was insufficient.

25. Since March 2023, the petitioner has explained to CFIUS through multiple written communications and face-to-face meetings that the divestiture plan to decouple TikTok's U.S. business from TikTok's overall global business platform as required by the Act is not feasible. CFIUS has never stated the basis for disagreeing with this assessment, but has only made a conclusive assertion that ByteDance did not divest because it was unwilling to do so. However, this unworkable divestiture criterion is still included in the bill.

C. Divesting TikTok's U.S. operations and decoupling from TikTok's globally integrated business is not commercially, technically, and legally feasible.

26.The bill purports to allow petitioners to avoid the ban by enforcing a "qualified divestiture". Sec. 2（c）。 But this alternative could not be realized because, as the petitioners have repeatedly explained to CFIUS, it is not commercially, technically, and legally feasible to divest TikTok's U.S. operations and decouple it from TikTok's globally integrated platform.

27. First, the standalone US TikTok platform is not commercially viable. TikTok and its competitors are globally integrated platforms where content created in one country is available for users in other countries to watch. In fact, one of TikTok's main attractions is the abundance of international content available on the platform — from global sporting events like the Olympics to K-pop stars in South Korea and videos made by American creators and watched by a global audience. This divestiture, which leaves the U.S. TikTok platform without any operational relationship with the rest of the global platform, will hinder seamless interoperability of international content between the U.S. market and other countries. As a result, the US TikTok platform will become an "island" that disconnects the US user experience from the other billion users of the global platform. Such a limited content library would greatly diminish the value and viability of TikTok business in the United States.

28. Secondly, it is technically impossible to transfer the development of all TikTok source code from ByteDance to a new TikTok owner. The platform consists of millions of lines of code that have been developed by thousands of engineers over the years. While most of these codes are just the basic architecture of the global TikTok platform and have nothing to do with TikTok's recommendation algorithm, the bill requires that the codes be stripped out of the hands of petitioners to ensure that there is no "operational relationship" between the new U.S. platform and ByteDance. Specifically, to comply with the stripping requirements of the Act, the codebase had to be moved to a large alternative engineering team. This team doesn't exist and doesn't know anything about the complex code required to run the platform. It would take years to get a whole new team of engineers fully familiar with the source code for the ongoing maintenance and development of the platform. In addition, to keep the platform running, these engineers need to use ByteDance's software tools, which the bill prohibits. It is not possible to make such a fundamental structural change in the 270 days required by the Act.

29. Third, the Chinese government has made it clear that it will not allow the sale of TikTok's successful recommendation engine in the United States. Like the United States, China controls the export of certain technologies developed within its borders. China's export control regulations cover "information processing technologies" such as "algorithms for personal interaction data". Under the rules, a government license is required to sell the recommendation algorithm developed for TikTok by engineers at ByteDance's Chinese subsidiary, Chinese state news agencies reported. China has also enacted a new export control law that "gives the Chinese government new policy tools and justifications to regulate foreign commercial transactions." China tightened its export control rules from August to October 2020, shortly after President Trump issued an executive order targeting TikTok. In doing so, the Chinese government has made it clear that it will exercise its export control powers to block any attempt to separate TikTok's operations from ByteDance, noting that any divestiture would render TikTok unable to use its unique style and community's recommendation engine. At the moment it cannot be replicated on other platforms.

D. Bill bans TikTok and other ByteDance apps.

30. On April 24, 2024, the President signed the Protecting Americans from Foreign Adversary Control Applications Act.

31. The Act severely prohibits "online mobile app stores" and "Internet hosting services" from providing services within the United States for "applications controlled by foreign adversaries." See Sec. 2(a), 2(d)(1)(A). This includes "distribution, maintenance, or updates" of covered applications through online marketplaces. Sec. 2（a）（1）。

32. Section 2(g)(3) establishes two categories of "applications controlled by foreign adversaries" covered by the Act.

33. The first category lists a separate group of companies: "ByteDance Limited," "TikTok," "affiliates or successors controlled by a foreign adversary," or "any entity owned or controlled" by the aforementioned companies. The bill identifies any application operated by these entities as an "application controlled by a foreign adversary." There isn't any reason why a particular application, let alone every application operated by these entities, should be so specified. See Sec. 2(g)(3)(A).

34. The second category creates a discretionary procedure that allows the President to designate that applications from other companies will likewise be effectively banned. Under these provisions, the president may designate an application as an "application controlled by a foreign adversary" if several conditions are met:

a. Regulated Companies. A website or application is operated directly or indirectly by a "regulated company" – i.e. a company that allows users to share content and has at least 1 million monthly active users. See Sec. 2(g)(2)(A).

b. Control by a foreign adversary. A "regulated company" operating a website or application must also be "controlled by a foreign adversary", i.e. it is headquartered in a "foreign adversary country" or has its principal place of business in those countries, or is organized under the laws of those countries, which currently include China. Sec. 2（g）（1）（A）, （g）（4）; See 10 U.S.C. § 4872(d)(2). A company is also considered "controlled by a foreign adversary" if at least 20% of the company's shares are held directly or indirectly by residents of a designated country, including China. Sec. 2（g）（1）（B）。

c. Not exempt under Sec. 2(g)(2)(B). But Congress has explicitly exempted any entity operating a website or app whose "primary purpose is to allow users to post product reviews, business reviews, or travel information and reviews." Such an entity, even if it is "controlled by a foreign adversary," even if it poses a significant national security risk, and operates an application whose primary purpose is to allow users to post reviews, cannot be considered a "regulated company." Sec. 2（g）（2）（B）。

d. Presidential decisions, notifications and reports, and judicial review. Finally, the president must determine that such a corporation poses a "significant threat" to U.S. national security. Sec. 2（g）（3）（B）（ii）。 Before such a decision can be made, the president must issue a public notice proposing the decision and then provide Congress with a public report describing the "specific national security issues involved", accompanied by a confidential annex, and explaining "assets that need to be divested to carry out a qualified divestiture". These presidential decisions are subsequently subject to judicial review. Sec. 3（a）。

35. Section 2(c) exempts "applications controlled by a foreign adversary" from the prohibition of the Act if the company operating the application performs a "qualified divestiture." The President must determine that such a divestiture would (1) "result in the relevant Covered Company no longer being controlled by a foreign adversary" and (2) "prevent any operational relationship between the app's U.S. operations and any previously affiliated entities controlled by a foreign adversary," including "any cooperation with content recommendation algorithms." As noted above, the Act's broad definition of "controlled by a foreign adversary" includes any entity that is legally organized by the "foreign adversary state" or any entity that is owned by a resident of the foreign adversary country with at least 20% ownership of the shares. Sec. 2（g）（1）, （3）（B）（i）, （4）。

36. The ban on providing internet hosting and mobile app store services to TikTok and other ByteDance apps takes effect 270 days after the bill is passed. Sec. 2（a）（2）（A）。 The President may extend this period for up to 90 days and only if the President certifies to Congress that a path has been found to perform a Qualified Divestiture, that evidence of significant progress has been made to achieve a Qualified Divestiture, and that the relevant legal agreements necessary to perform the Qualified Divestiture have been reached.

37. "Prior to the effective date of [the] injunction," the petitioner shall provide "all available data relating to the application" to any U.S. user of its application upon request. Sec. 2（b）。

38. Because the bill lacks any legislative basis or statement of purpose, petitioners and more than 170 million U.S. monthly users must review statements from individual members of Congress and other sources in an attempt to discern any justification for this extraordinary violation of the right to free speech. According to these sources, it seems that at least some members of Congress are trying to address the "two threats" of those that could come from foreign ownership of communication platforms.

39. First, they may be trying to protect the "data security" of users in the United States. According to a House committee report on an earlier version of the bill, mobile apps, including those not controlled by foreign adversaries, can "collect vast amounts of data about Americans." The House committee report expressed concern that the data could be used by foreign adversaries to "conduct espionage," such as tracking specific individuals.

40. Second, others in Congress seem to be driven by "greater concerns" – the so-called "propaganda threat". One of the bill's supporters said messaging apps could be used to "spread disinformation, misinformation, and propaganda to the American public." Another supporter claimed at a House select committee press conference when the bill was introduced that "[TikTok] is poisoning our young people on a massive scale every day."

E. Congress ignored alternative measures, such as national security measures that the petitioner consulted with the executive branch.

41. The petitioner has made a commitment to resolve these issues without the extreme and unconstitutional measure of shutting down one of the most widely used forums of speech in the United States. The petitioner's draft 90-page national security agreement with CFIUS, if implemented, would provide TikTok users in the U.S. with stronger protections than any other widely used online platform in the industry.

42. The draft national security agreement contains several ways to ensure data security without banning TikTok. All protected U.S. user data (as defined in the National Security Agreement) will be protected under a special U.S. corporate structure – TikTok U.S. Data Security (a new subsidiary of TikTok Inc.). A U.S. government-approved security board would oversee TikTok's U.S. data security, thereby excluding liability from ByteDance and other subsidiaries and affiliates. The appointment of a U.S.-approved member of the security board to TikTok Inc.'s board of directors will further separate the U.S. TikTok business from ByteDance's subsidiaries and affiliates, including TikTok in the rest of the world. Protected U.S. user data will be stored in a cloud environment with Oracle Corporation, a partner approved by the U.S. government, and accessed by TikTok U.S. Data Security Management data.

43. The draft will also safeguard against concerns about content manipulation and publicity. Multi-layered safeguards address concerns related to content on the TikTok platform, including ensuring that all content moderation, both human and algorithmic, will be subject to third-party verification and monitoring. Ensure the security of all software code and solve content manipulation problems with Oracle Corporation, a U.S.-based, trusted technology provider. The U.S. TikTok platform and app will be deployed through Oracle Cloud Infrastructure and will have the source code reviewed and validated by Oracle, while another U.S. government-approved third party will conduct security checks. As part of this process, an independent check of the TikTok recommendation engine will be conducted by Oracle and CFIUS-approved third parties.

44. The draft also includes strict penalties for violations, including a "shutdown option" that gives the government the power to suspend TikTok operations in the United States in the event of a specific violation. The agreement also provides significant fines and other remedies for non-compliance.

45. Although the Government has apparently abandoned the draft national security agreement, the petitioner has not. TikTok Inc. has begun voluntarily implementing the terms of the national security agreement without U.S. government cooperation, including establishing and employing TikTok's U.S. data security entity and working with Oracle Corporation to migrate U.S. platforms 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 address the publicly expressed concerns of congressional supporters – all without the need for a wide-ranging and unconstitutional ban.

Grounds for requesting legal relief

The petitioner seeks a review of the constitutionality of the bill on the following grounds, but not limited to:

First Basis: Violation of the First Amendment

47.The First Amendment to the United States Constitution provides that "Congress shall make no law ... Restricting freedom of speech. U.S. Constitution, Amendment I.

48. By blocking all online platforms and software applications provided by "Tiktok" and all ByteDance subsidiaries, Congress enacted a law restricting a large number of protected expressions. Unlike radio, television, and radio stations, which require a government license to operate, the government cannot dictate ownership of newspapers, websites, online platforms, and other privately created forums of speech, subject to the First Amendment.

49. In fact, in the past, Congress has recognized the importance of protecting First Amendment rights when it regulates on national security grounds. For example, Congress has amended the International Emergency Economic Powers Act (IEEPA) several times to give the president broad powers to respond to national emergencies that pose an "unusual and unconventional threat" to the nation, but explicitly excludes regulation of "any dissemination of content related to personal communications" and "material containing news or newsletters." 50 U.S.C. §§ 1701（a）, 1702（b）（1）-（3）。

50. The alternative to the prohibition in the Act – the so-called "qualifying divestiture" – is so impractical that it can hardly be counted as a real alternative. As noted above, it is not commercially, technically, and legally feasible to divest TikTok Inc.'s U.S. operations and completely separate them from its globally integrated platform.

51. As a result, the Act will result in TikTok being shut down in the United States. This platform is a popular forum for free speech and expression, which is used by more than 170 million Americans every month. Moreover, the Act is not based on any compelling proof of interest, but on speculative and logically flawed concerns about data security and content manipulation – which, even if true, could be addressed in a less restrictive and more customized approach.

52. Petitioner's protected right to speech. The bill undermines TikTok Inc.'s First Amendment rights in two ways, as well as the free speech rights of millions of people across the United States.

53. 首先，请愿人 TikTok Inc. 在其在 TikTok 上的编辑和出版活动中享有第一修正案的利益。见 Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 570 （1995）。 TikTok “不仅仅是一个被动接收新闻、评论和广告的平台”； TikTok Inc. 对推荐或禁止的材料的 “选择构成了受第一修正案保护的编辑控制和判断的行使”。见 Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 258 （1974）；见 Alario v. Knudsen, — F. Supp. 3d —, 2023 WL 8270811, at *6 （D. Mont. Nov. 30, 2023）（承认 TikTok Inc. 的第一修正案编辑权利）。

54. As the Government itself admitted, "when [social media] platforms decide which third-party content to display and how, they are engaging in First Amendment-protected expressive activities because they are creating collections of expressive content." See U.S. Government in Moody v. Brief as amicus curiae in NetChoice LLC, 2023 WL 8600432 (U.S.), Pgs. 12-13; See id. at pp. 18-19, 25-26.

55. 其次，TikTok Inc. 是该法案禁止表达的发声者之一。 TikTok Inc. 利用 TikTok 平台创建和分享有关问题和时事的内容，例如支持小企业、地球日和识字教育。当 TikTok Inc. 这样做时，它是在进行受第一修正案保护的核心言论。见 Sorrell v. IMS Health Inc., 564 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）。该法案禁止 TikTok Inc. 通过该平台表达自己。

56. Even if the U.S. TikTok platform could be divested (which, as noted above, this is not possible), TikTok Inc.'s protected right to speech would still be affected. Because the bill seems to dictate that any app operated by "TikTok" — which Congress may intend to include TikTok Inc. — is an app controlled by a foreign adversary, Sec. 2(g)(3)(A). The president does not appear to have the authority to decide that an app operated by TikTok Inc. is "no longer controlled by a foreign adversary" and does not have an "operational relationship" with "previously linked entities controlled by a foreign adversary," Sec. 2(g)(6)(A) & (B). As a result, the bill appears to completely eliminate TikTok Inc.'s ability to express itself through its editorial and publishing activities, as well as through its account on the TikTok platform.

57. For similar reasons, the bill undermines the First Amendment rights of other ByteDance subsidiaries to their U.S. user audiences, as these companies are similarly prohibited from engaging in speech and editorial activities on other ByteDance apps.

58. The bill should be subject to rigorous scrutiny. The bill's restrictions on petitioners' First Amendment rights should be scrutinized for three reasons:

59. First, the Bill represents restrictions on the content and views of protected speech. The bill discriminates on content because it exempts platforms whose "primary purpose is to host a specific type of content" – "product reviews, business reviews, or travel information and reviews." Sec. 2（g）（2）（B）。 Thus, the bill "distinguishes between favored speech" (i.e., speech about tourist information and corporate reviews) and "unfavored speech" (i.e., all other types of speech, including religious and political content of particular value). See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 643 （1994）。

60. The bill also discriminates in views, as it was enacted at least in part out of concerns about the views expressed by TikTok users in videos posted on the platform. For example, the House committee report unsubstantiated claims that TikTok "can be used by [foreign adversaries] ... spreading disinformation, misinformation, and propaganda to the U.S. public," a concern that can be targeted at virtually any platform with user-generated content. See paragraphs 82 and 87 below. Likewise, MP Raja Krishnamoorthi, co-sponsor of the bill, expressed unsubstantiated concern that "the platform continues to show significant differences in content compared to other social media platforms".

61. Secondly, the Act discriminates between the types of speakers. As mentioned above, TikTok Inc. is a protected First Amendment voice on the TikTok platform. The bill ostensibly distinguishes TikTok Inc. from other voices — depending on the "primary purpose" of the platform they operate. Any application provided by the petitioner is automatically considered an "application controlled by a foreign adversary" without any exceptions or exemptions. Sec. 2（g）（3）（A）。 In contrast, any other company's app can only be considered a "foreign adversary-controlled app" if the company does not operate a website or app whose "primary purpose is to allow users to post product reviews, business reviews, or tourist information and reviews." Sec. 2（g）（2）（B）。 As a result, the bill favors those who provide these websites or apps to the detriment of those who do not.

62. In addition, the bill specifically targets TikTok Inc. and other ByteDance subsidiaries in other ways. Other companies with ownership in countries that are considered "foreign adversaries" are subject to the Act's restrictions only if the President determines that they pose a "significant threat" to U.S. national security, Sec. 2(g)(3)(B), while ByteDance, Inc. and its subsidiaries are automatically subject to the Act's severe restrictions, Sec. 2(g)(3)(A). The standards and procedures that the bill imposes on all other companies may not meet the requirements of the First Amendment and other applicable constitutional protections, but TikTok Inc. and ByteDance are listed separately as a manifestly unconstitutional regime — no public notice, no process for the president to determine that there is a significant national security threat, no public reporting and classified evidence to Congress to support the decision, and no judicial review based on the reasons set forth in the president's decision. The bill also distinguishes between voice-givers because it specifically lists ByteDance Limited and TikTok, and exempts apps with fewer than 1 million monthly active users (unless those apps are operated by ByteDance Limited or TikTok). Sec. 2（g）（2）（A）（ii）, （3）（A）。

63. Statutory restrictions on specific categories of speakers should be subject to strict scrutiny. See United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 812 (2000) ("Laws designed to suppress or restrict the expression of particular voices violate fundamental First Amendment principles. ”）。 Especially when the bill is explicitly aimed at petitioners, and the congressional statement indicates that the bill was enacted in part due to concerns about TikTok content. Because the bill "treats speakers and their messages unfavorably," it needs to be subject to rigorous scrutiny. See Sorrell, 564 U.S. at 565, and Turner, 512 U.S. at 658-60.

64. 第三，该法案是非法的事先限制、需受严格审查。最高法院在一系列案件中一致认为，政府行为 “在实际表达之前禁止使用论坛” 或禁止 “在公共场所表达想说的内容” 是事先限制。见 Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 552-53 （1975）。 “事先限制言论和出版是对第一修正案权利最严重和最难容忍的侵犯。 ” 见 Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 （1976）。该法案通过禁止所有美国 TikTok 用户 —— 包括请愿人 TikTok Inc. —— 在平台上交流，提前压制言论。见 Backpage.com, LLC v. Dart, 807 F.3d 229 （7th Cir. 2015）（被告限制分类广告网站运营商的行为是事先限制）；见 Org. for a Better Austin v. Keefe, 402 U.S. 415, 418-19 （1971）（禁止分发传单是一种事先限制）；见 U.S. WeChat Users All. v. Trump, 488 F. Supp. 3d 912, 926 （N.D. Cal. 2020）（禁止通信应用程序是一种事先限制）。

65. The bill did not pass rigorous scrutiny because it did not further promote coercive interests. Critical scrutiny "requires the government to demonstrate that the restriction advances a coercive interest and that it is precisely tailored to that benefit." Reed v. Gilbert Township, 576 U.S. 155, 171 (2015) (numeric changes added). "If a less restrictive alternative serves the government's purposes, the legislature must use that alternative." Playboy, 529 U.S. 813. The bill failed to pass on either side.

66. The Act does not promote mandatory benefits. To be sure, national security is a mandatory interest, but the government must demonstrate that the bill promotes this interest. To do this, the government "must not only assume the existence of the pathology that it seeks to address." Turner, 512 U.S. 664 (plural submissions). Rather, it "must prove that the stated harms are true, not merely speculative, and that the statute would actually mitigate those harms in a direct and substantial way." Ditto.

67. Congress itself did not provide any evidence that the TikTok platform presents risks that could justify the bill, such as data security or the dissemination of foreign propaganda. Even since the platform was first launched in 2017, there has been no legislative finding in the bill, let alone evidence of specific harms for TikTok in either area.

68. In the hurried, closed-door legislative process leading up to the enactment of the bill, statements by congressional committees and individual members confirmed that they were at best speculative rather than "evidence" required by the First Amendment. The House committee report did not provide evidence that TikTok did compromise Americans' data security or spread pro-China propaganda by sharing data with the PRC. Instead, the House committee report has repeatedly relied on speculation that TikTok might do just that. See, for example, House Committee Report, page 6 (TikTok may "potentially allow CCP to 'track the location of federal employees and contractors'") (citing Executive Order 13942, 85 Fed. Reg. 48637, 48637 (August 6, 2020)); Page 8 (discussing "CCP may use (TikTok) to control data collection for millions of users"); Ditto ("TikTok has advanced capabilities, which makes it possible...... suppress statements and news that the PRC considers negative"). When the value of the First Amendment is at stake, pure speculative risk is clearly not enough. These risks are even more speculative considering that the PRC can also utilize a variety of intelligence tools and business methods to advance these interests. See 85–87 below.

69. The speculative nature of these concerns is further confirmed by President Biden's decision to continue to maintain TikTok accounts for his campaign after signing the bill into law. Congressional supporters of the bill also continue to maintain campaign accounts on TikTok. These continued use of TikTok undermine the claim that the platform poses an actual threat to the United States.

70. Moreover, even if the government can prove that TikTok or other ByteDance-owned apps "spread disinformation, misinformation, and propaganda to the American public" (House Committee Report, p. 2), the government still lacks a compelling interest to stop — Americans simply because of the spread of unpopular speech that is deemed "propaganda" by the government as foreign. See Lamont v. United States Postal Service, 381 U.S. 301, 305 (1965).

71. The bill also does not support the idea that other applications operated by subsidiaries of ByteDance Limited pose a national security risk. In fact, the legislative record barely discusses any ByteDance-owned apps other than TikTok, let alone evidence that these other apps pose such a risk. Reid, 576 U.S. 171.

72. The Bill also fails to explain why petitioners are disqualified solely through legislative means, while providing other platforms and their users with a judicial review process that includes disqualification criteria, notices, evidence-based reasoned decisions, and on these clear grounds. Petitioners, on the other hand, are subject to a system of no notice, no evidence-based and reasoned decisions – which leads to ex post facto interpretations that may not be the basis for government action. The Supreme Court recently explained that the "reasonable explanation" requirement is "to ensure that [the government] provides genuine reasons that can be scrutinized by the courts and interested public, and that accepting fictitious reasons renders the whole process meaningless." U.S. Department of Commerce v. New York, 139 S. Ct. 2551, 2576 (2019). The denial of these protections to petitioners adds to the burden of their and TikTok users' right to freedom of expression, which is completely unjustified and not supported by coercive benefits.

73. The bill also did not pass rigorous scrutiny because it was not precisely formulated. "Even when it comes to so-called pressing national security issues," the government must demonstrate that "the problems posed by restricted speech are both large and certain, and cannot be mitigated by less intrusive measures." CBS v. Davis, 510 U.S. 1315, 1317 (1994). In order to satisfy strict customization, the Act must represent the least restrictive way of promoting government data security and advocacy interests, Sabur Communications Inc. v. FCC, 492 U.S. 115, 126 (1989), and should not be excessive or inadequate, Arkansas Writers Project v. La Grande, 481 U.S. 221, 232 (1987). The bill fails on any of these fronts.

74.The bill opts for a blanket ban on petitioners from providing online applications, rather than adopting a number of less restrictive measures. As noted above, the petitioner has been negotiating a package of measures with CFIUS since 2019 to address government concerns about TikTok's data security and alleged propaganda. The terms of the negotiated agreement are less restrictive than a blanket ban. The negotiations gave birth to a draft national security agreement, and TikTok Inc. has done everything in its power to implement it voluntarily without government action. The move includes multibillion-dollar efforts to create a new TikTok subsidiary in the U.S. to specifically protect U.S. user data, and for Oracle to store protected U.S. TikTok user data in the U.S., run TikTok's recommender system for U.S. users, and check TikTok's source code for security vulnerabilities.

75. If the government signs a national security agreement, CFIUS will also get a "shutdown option" to address specific non-compliance, suspend TikTok's operations in the United States. The government has never clearly explained why the agreement is inadequate to address concerns about data security and advocacy.

76. Even if the government's dissatisfaction with the agreement is justified (although the government has not explained why the agreement it negotiated is unsatisfactory), the CFIUS process is intended to provide a solution for the petitioner. CFIUS member firms can work with petitioners to develop commercial, technical, and legally viable options, and the government has not explained why the CFIUS process is not feasible.

77. The National Assembly may also adopt other measures that are less restrictive. While these measures themselves are also unreasonable to the petitioner, they show that the bill does not opt for the least restrictive means to achieve national security objectives. Congress could expand existing government device bans or legislate to restrict TikTok's access to users' device features — a potential mitigation that the Department of Homeland Security proposed in 2020.

78. Of course, Congress can also create industry-wide regulations that address industry-wide issues such as data security and content integrity, regardless of specific platforms and companies. Congress can create laws, similar to the strategy the president has adopted through executive orders, to put data protection on the policy agenda and to govern the transfer of sensitive U.S. data through foreign data transfer regulations.

79. Models from other jurisdictions, such as the European Union's Digital Services Act, could also be replicated. For example, the European Union's Digital Services Act requires certain platforms to disclose their content moderation policies and provide access to data to regulators and researchers who can assess whether they are systematically promoting or suppressing content with specific views. Congress did not take these alternatives.

80.Parliament did not even provide petitioners with procedural and fact-finding protections for all other companies that the Act accorded – and these protections themselves may not be constitutionally required. Other companies receive prior notice, and the president identifies the national security threat posed by the targeted application and submits classified evidence supporting the decision to Congress, Sec. 2(g)(3)(B), and then judicial review makes a decision based on actual grounds, not ex post facto.

81. As Parliament has not attempted to introduce any of these less restrictive measures, or at least to explain why these alternatives do not address the Government's apparent concerns, the Bill is not strictly restrictive.

82. Taken independently, the Bill itself fails to pass rigorous scrutiny because it is both inadequate and excessively inclusive. It is inadequate because it ignores the fact that other companies – whether foreign or domestic – can pose the same risk of data security and misinformation spread as petitioners in the same way. The government "cannot claim" that banning certain types of foreign-owned apps is "necessary" to prevent espionage and propaganda, while "at the same time" allowing other types of platforms and apps that may "cause the same problems." Reed, 576 U.S. at 172 pages. In other words, the bill's "[inadequate scope] raises serious suspicions that the government is actually pursuing what it claims to be, rather than discriminating against a particular speaker or point of view." Brown v. Ent. Merchants Ass’n, 564 U.S. 786, 802 （2011）。

83. Most obviously, the Bill only applies 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 scope of application of the Act is therefore not determined by whether apps collect user data, but rather by whether they display "content". Therefore, there is no necessary connection between the scope of the Act and Congress's apparent concern about the security risks of Americans' data. Personal finance, navigation, fitness, or many other types of apps can also be equally risky.

84. The Bill also explicitly excludes petitioners by exempting all other companies from operating 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）。 However, the Act does not explain why such applications (i) are broadly defined under the Act as "controlled by a foreign adversary"; and (ii) may not be used to collect data on U.S. persons, such as location information or the dissemination of false information, in the event that the President determines to be a significant national security threat. The Act also doesn't explain why a business doesn't pose a threat at all just because it operates a website or app whose primary purpose is to publish "product reviews, business reviews, or travel information and reviews." Sec. 2（g）（2）（B）。 The bill's differential treatment of these popular websites and apps also ignores the abundance of product reviews, business reviews, and travel information and reviews on TikTok. However, TikTok and all ByteDance's apps are not eligible for this exemption.

85. More broadly, the Act ignores the fact that much of the data collected by TikTok is not fundamentally different from the data typically collected by other apps and sources in today's online world, including US companies such as Google, Snap and Meta.

86. Similarly, a House committee report on an earlier version of the bill speculated that source code development in China "could expose U.S. users to malicious code, backdoor vulnerabilities, covert surveillance, and other problematic activities related to source code development." But these so-called risks also exist in many U.S. companies that hire people and develop code in China. The Act does not seek regulation, let alone prohibition, of all online applications that have offices in China or otherwise employ Chinese nationals as software developers.

87. Nor does the Act attempt to cut off other ways in which Americans may be exposed to foreign propaganda. For example, the Act allows foreign nationals (even hostile governments) to operate cable networks in the United States, disseminate propaganda messages through other online platform accounts, or distribute copies of their state-controlled newspapers in the United States (including through apps).

88. The Act is too broad because it applies to other applications owned by ByteDance Limited. Congress has not shown (and cannot prove) that these apps comply with the risks that the bill clearly wants to address.

89. At the very least, the Bill failed to pass the intermediate review. Even if strict censorship does not apply, the Act still fails to pass intermediate scrutiny because it imposes restrictions on when, where, and how TikTok's speech activity is prohibited at any time, place, and manner across the United States. To pass the intermediate review, the law must be "rigorously adjusted to serve significant government interests." McCullen v. Coakley, 573 U.S. 464, 486 （2014）。

90. For the above reasons, the Bill does not meet the requirements of critical scrutiny, nor does it meet the requirements of intermediate scrutiny.

91. As mentioned earlier (paras. 67-69), the government has failed to demonstrate that its concerns about TikTok's data security and advocacy did not come out of nowhere. As noted earlier (paras. 73-81), the Act restricts free speech more than necessary, as there are a number of less stringent alternatives that Congress can take to address any legitimate concerns. The bill also failed to pass the intermediate scrutiny because it "effectively blocked" TikTok Inc. contact with its target audience", and therefore "fails to provide adequate alternative channels of communication." Edwards v. City of Coeur d’Alene, 262 F.3d 856, 866 （9th Cir. 2001）。

92. Irrespective of the standard of scrutiny, the Act contravenes the First Amendment for two additional reasons.

93. The Act cuts off the whole way of expression. First, by banning TikTok in the U.S., the Act "shut down a whole body of expression." ”City of Ladue v. Gilleo, 512 U.S. 43, 56 （1994）。 A series of Supreme Court cases have shown that such laws are almost never considered reasonable. Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1064-65 （9th Cir. 2010）。

94. The Bill is too broad in terms of constitutionality. Second, the Act is too broad on the surface. A law "is an overly broad criterion in which it is applied in a large number of contexts that are unconstitutional – judging by the clear scope of the law." United States v. Stevens, 559 U.S. 460, 473 (2010) (citation omitted). For example, the government has never claimed that all—or even most—of the content on TikTok (or other ByteDance-owned apps) represents disinformation, misinformation, or propaganda. However, the bill shuts down all speech on ByteDance-owned apps at all times, places, and methods. This is a typical over-the-top range. See, e.g., Bd. of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 574-75 （1987）。

The second basis: the unconstitutional Strip of Citizenship Act

95.The Bill is an unconstitutional bill of deprivation of citizenship.

96.Article I of the United States Constitution prohibits Congress from passing any bill of disenfranchisement. Article I, Section 9, Section 3 of the U.S. Constitution: "No stripper of citizenship bill or retroactive law shall be passed." A stripped-off bill is a "legislative punishment" for a particular individual or group, regardless of its form or severity. United States v. Brown, 381 U.S. 437, 447 （1965）。 "The protection of the Strip of Citizenship Act is a means of achieving the separation of powers, a universal guarantee of the legislature in the exercise of its judicial function, or, more simply, a legislative trial." Id. at 442。

97.The Bill is an unconstitutional bill of disenfranchisement by imposing legislative penalties on petitioners.

98. The "pain and punishment" imposed by the Act is consistent with the penalties historically associated with the Bill of Disenfranchisement. See Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 474 （1977）。 Historically, common "pain and punishment" have included "punitive confiscation of property by a monarch" and "legislative provisions prohibiting the designation of individuals or groups of individuals for specific jobs or occupations", among others. As mentioned earlier, the Act deprived the petitioners of their U.S. business by forcing ByteDance to shut down or sell its U.S. business on unworkable terms within 270 days. See paragraphs 26-29 above. For the same reason, the Act prohibits petitioners from operating in their chosen field of business.

99. "In the light of the type and severity of the burden imposed on the petitioner," the Act deals with petitioners "cannot reasonably be said to promote a non-punitive legislative purpose." Nixon, 433 U.S. at 475-76。 The Act transforms petitioners into a "vilified class" by explicitly prohibiting their current and future business activities in the United States, without taking the same steps against other similar companies. Foretich v. United States, 351 F.3d 1198, 1224 （D.C. Cir. 2003）。

100. Further, in view of the less restrictive alternatives discussed above, there is no reasonable basis for automatically barring the petitioners from current and future operations in the United States (or their subsidiaries or successors), let alone giving them an 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）。 The Act makes it clear that this penalty burden is imposed only on petitioners, while establishing a set of applicable statutory standards and decision-making procedures for other entities that make it clear that petitioners are subject to prohibited, legislatively punishable penalties.

101. In addition, the petitioner could avoid the ban on the Act only by selling it outright, while all other companies – even if they were owned by China and deemed by the President to pose a "significant threat" to U.S. national security – could avoid the ban by simply operating a website or app whose "primary purpose is to allow users to post product reviews, corporate reviews, or travel information and reviews." Section 2(g)(2)(b).

102. In fact, any other company "controlled by a hostile force" that operates the same app as TikTok and also operates a website "whose main purpose is to publish product reviews" will not be affected. This provides a way for all companies except those associated with the petitioner to circumvent the Act. In reality, this bill only applies to one group of companies – as congressional leaders have described, it's the "TikTok Act."

103. The Bill therefore constitutes an unconstitutional bill of deprivation.

The third ground: violation of the principle of equal protection

104. The bill also violated the petitioner's right to equal protection under the Fifth Amendment due process clause in that it treated the petitioner unjustifiably unfavorably.

105. First, the bill treats applications provided by any petitioner as "applications controlled by foreign hostile forces" without prior notice or a decision of the President. Section 2(g)(3)(A). In contrast, applications provided by other companies "controlled by a foreign hostile force" will only be considered "applications controlled by a foreign hostile force" after notification and a determination by the President that the company poses a "significant threat" to U.S. national security, and this determination must be supported by evidence submitted to Congress. Section 2(g)(2)(B); See paragraph 34 (d).

106. This distinction greatly increases the burden of freedom of expression on the petitioner without any justification. The bill does not allow the government to impose a burden on the free speech of any voice speaker, except petitioners, unless the president issues a public report on the specific national security issue of the decision and provides the basis for the decision and describes the assets that need to be divested. These protections ensure that the president should at least provide detailed national security justifications and provide a basis for judicial review before taking action. The bill does not require these requirements to be fulfilled before the petitioner's speech is burdened, but is imposed directly by an uninterpreted legislative order.

107. Secondly, the Bill deprives the petitioner of the exemption that other companies deemed to be "controlled by a foreign hostile force" still enjoy the exemption. As noted above, any application provided by the petitioner is automatically considered to be an "application controlled by a foreign hostile force." In contrast, other companies that are "controlled by a foreign hostile force" that provide at least one app and whose "primary purpose is to 'allow users to post product reviews, corporate reviews, or travel information and reviews'" are exempt from being considered "controlled companies" and thus exempt from the requirements of the Act. Section 2(g)(2)(B).

108. There is no understandable reason to treat the petitioner differently from all other similar companies. Even if Congress had a legitimate interest in protecting U.S. user data and controlling what might be disseminated on global platforms, the bill would not explain why these concerns could support the blocking of petitioners' platforms without a corresponding injunction. Congress also has no reasonable reason to ban the petitioner's platform, but allows any company "controlled by a foreign hostile force" — no matter how big the national security threat it poses — to bypass the bill's regulation altogether by simply providing apps that allow users to post product reviews, business reviews, or travel information and reviews.

109. By treating the petitioner differently from other similar companies, the bill deprives the petitioner of equal protection.

Fourth basis: expropriation in violation of the Constitution

110.The Act imposes an illegal expropriation of private property, in contravention of the expropriation provisions of the Fifth Amendment.

111. The expropriation clause provides that "private property" may not be expropriated "for public purposes" without just compensation. Amendment V to the U.S. Constitution, Section 5. The bill does this precisely by shutting down ByteDance's U.S. operations or, if eligible for divestment, forcing ByteDance to sell them in the context of ensuring inadequate compensation.

112. The petitioner has a substantial property interest in his U.S. business. This includes not only ByteDance Ltd.'s interests in TikTok Inc. and other U.S. businesses, but also the platform and the app itself. See Kimball Laundry Co. v. United States, 338 U.S. 1, 11–13 (1949) (expropriation clause also protects loss of business value).

113. If the injunction of the Act comes into force, it will deprive the petitioner of the property protected by the expropriation clause. In the absence of a qualifying divestiture package, the bill would close the petitioner's business in the United States. Even if a divestiture option were feasible (and practically not), any sale would at best be done at a significant discount to the current market value, given the forced sale. See BFP v. Resol. Tr. Corp., 511 U.S. 531, 537 (1994) ("Market Value" has no applicability in the event of a forced sale; In fact, it is the opposite of the forced sale value).

114. 因为该法案强制字节跳动 “放弃特定、可识别的财产” 或丧失 “所有经济上有利可图的用途”，因此该法案构成了强制征收。 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 also constitutes a regulatory levy. Even if the law does not enforce the occupation of the property or deprive it of all economically viable uses, it will still constitute expropriation "if it is too harsh". Penn. Coal Co. v. Mahon, 260 U.S. 393, 415 （1922）。 In determining when a law is "excessively harsh," courts will often refer to Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 124 (1978) in "multiple factors", i.e. (a) "economic impact of regulations"; (b) "the extent to which regulations interfere with reasonable investment expectations"; and (c) "the nature of government acts". Based on these three factors, the bill constitutes a regulatory levy.

116. 该法案没有补偿请愿人（更不用说提供合理的补偿）来弥补他们美国业务的财产损失。见 United States v. Miller, 317 U.S. 369, 373 （1943）。因此，有必要提供潜在的禁制令。见，例如 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 （1952）。

Requested Legal Remedies

The petitioner pleads with the Court to grant the following relief:

a. issue a judgment finding that the Act violates the U.S. Constitution;

b. issue an order prohibiting the Attorney General from enforcing the Act;

C. Judgment in favour of the petitioner; moreover

D. Provide any other appropriate relief.

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