• by Wendy Davis  @wendyndavis, December 12, 2024

The Department of Justice is urging a federal appellate court to reject TikTok's emergency request to block a law that could result in a ban on the app by January 19.

In papers filed late Wednesday, the Justice Department says TikTok should present its case for an injunction to the Supreme Court, as opposed to the D.C. Circuit Court of Appeals.

“Petitioners are entitled to ask the Supreme Court to enjoin the law’s application pending that court’s review,” the Justice Department argues. “The Supreme Court can decide for itself whether the statute must be enjoined.”

The government's filing comes in response to TikTok's request that the circuit court temporarily stay the Foreign Adversary Controlled Applications Act (H.R. 7521).

That statute, signed into law in April, prohibits app stores and websites from distributing TikTok unless it's divested by ByteDance. The measure was largely driven by fears that the Chinese government may be able to access data about TikTok's users, and use the app to influence public opinion.

The law gives ByteDance a January 19 deadline to find a buyer, and provides that President Joe Biden can extend that period for up to three months. Biden hasn't indicated whether he's inclined to grant that extension.

TikTok and a group of users challenged the law in court, arguing that the measure violates the First Amendment by shutting down a communications platform.

Last week, the D.C. Circuit Court rejected that challenge, ruling that even though the law will have an impact on speech, the statute is justified by national security concerns.

Immediately after that ruling came out, TikTok asked the circuit court to enjoin the law on an emergency basis until the Supreme Court could weigh in.

“Starting on January 19, the Act will inflict extreme and irreparable harm on petitioners by banning their operation of TikTok in the United States on the eve of a presidential inauguration,” the company argued in papers filed earlier this week. “This will deprive TikTok’s base of 170 million monthly users and creators of access to one of the country’s most popular speech platforms; destroy TikTok’s ability to attract advertisers; and cripple petitioners’ ability to recruit and retain talent.”

TikTok also said an emergency injunction would give the incoming Trump administration an opportunity to determine its position.

President-elect Donald Trump recently suggested he doesn't support a ban, despite having attempted to outlaw the app when previously held office. But it's unclear whether Trump can effectively prevent a ban -- either by convincing Congress to repeal the law, or asking the Department of Justice not to enforce it.

The Department of Justice says in its motion that TikTok's new arguments to stay the law “give short shrift to the national-security harms” that spurred the statute.

“Continued Chinese control of the TikTok application poses a continuing threat to national security, and both Congress and this court took account of the competing interests of users of the application,” the government argues.

TikTok has requested that the court decide by December 16 whether to temporarily block the law.