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If the law in question targeted only US-based companies, “there’s no doubt that would be a huge First Amendment concern,” said Sri Srinivasan, chief judge of the US Court of Appeals for the District of Columbia Circuit, citinga pair of casesdecided by the Supreme Court this summer.

But, he added, that isn’t the situation here. Instead, Congress passed a law that targets a US company’s foreign owners and their influence over the algorithm that 170 million Americans use to watch videos about sports, fashion and politics.

“It’s just that the curation is happening abroad,” he said to Daniel Tenny, a lawyer representing the US government.

“The core point we’re making is one they’ve conceded,” Tenny told the court, “which is that [TikTok’s] code is made in China.”

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If TikTok is successful, it could win a decision that blocks the legislation. But if it fails, the company will be required to find a new owner by mid-January, or else be prohibited from the devices of all Americans.

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In addition to Srinivasan, an Obama appointee, hearing the case were Judge Neomi Rao, who was appointed by former President Donald Trump, and Judge Douglas Ginsburg, a Reagan appointee.

Both Rao and Ginsburg appeared to push hard against TikTok’s arguments, with Ginsburg at one point dismissing claims about the legislation’s allegedly sweeping breadth as a “blinkered view.” The law does not open up possible bans against all foreign-owned publications or platforms, he said, as it only targets companies linked to specific adversary nations such as China.

“We’re not talking about banning Tocqueville,” Rao said, referring to Alexis de Tocqueville, the French author of the historical text “Democracy in America.”

But a decision to restrict TikTok in the United States would still harm American users, TikTok and the coalition of content creators argued. Courts have historically protected Americans’ right to listen to foreign views, even if it is propaganda.

“Congress didn’t do any of the things the First Amendment requires,” Andrew Pincus, an attorney representing TikTok, told the court. He added: “The government’s solution to foreign propaganda, in every context, [has been] disclosure, not a ban.”

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It’s not clear when the court could reach a decision on the legislation. But the law sets out a deadline of Jan. 19 for TikTok, so it is likely the court may rule before then.

Fast-tracked through Congress this spring with uncommon speed, the legislation is a US response to fears that TikTok’s China ties could allow that country’s government to access American users’ app data, such as which videos they have watched, liked, shared or searched for.

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Court filings show that TikTok and US national security officials had hammered out a draft proposal to address the security concerns. That agreement included the ability for the US government to shut down TikTok if it violated the proposed deal. Some of the deal’s provisions TikTok has already publicly implemented as part of an initiative calledProject Texas, which involves moving US user data onto servers controlled by the American tech giant Oracle and erecting additional organizational barriers between TikTok and ByteDance.

But, TikTok claims, US officials abruptly abandoned the plan with no explanation. (The US government has subsequently described the plan in its court filings as “inadequate” because officials feared it would be hard to detect whether TikTok were violating the agreement.)

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For another, the company argues, the Chinese government most likely won’t allow TikTok’s recommendation algorithm to be sold to a non-Chinese company. The recommendation engine is TikTok’s secret sauce and what powers its popularity; without it, the app loses its most distinctive feature.

Last year,the Chinese government saidit would “firmly” oppose a potential sale of TikTok from ByteDance, followingnew export controlsthe country announced that affect the transfer of certain software algorithms.

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“If Congress can do this,” the company wrote in its filings, “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.”

Finally, TikTok claims, the US government has never proven that the Chinese government has exploited US user data to justify the law.

“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,” the company wrote. “Those speculative concerns fall far short of what is required when First Amendment rights are at stake.”

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“TikTok’s parent company and recommendation algorithm are based in China,” the Justice Department wrote in a court brief, “giving rise to the risk that a foreign adversary will wield TikTok’s enormous power to advance its own interests, to the detriment of U.S. national security.”

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Independent cybersecurityexperts have saidthat the risk of Chinese spying through TikToksounds plausible but remains unproven.

China’s intelligence lawsrequire companieswith a presence there to help with that country’s intelligence objectives. TikTok does not operate in China, but ByteDance does, meaning it is subject to China’s laws — and the Chinese government holds a board seat on ByteDance’s local Chinese subsidiary. The question is whether all that amounts to enough influence over ByteDance and TikTok to gain access to US TikTok users’ data, in spite of the guardrails promised by Project Texas.

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Butformer national security officials wrotethat TikTok user data, if combined with other information Beijing has collected through hacks and leaks, could be a potent intelligence risk.

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