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The appeals court that upheld a law that could ban TikTok in the United States said the government offered no evidence that China is manipulating content on the platform in the United States.
However, the panel of judges wrote in their opinion that evidence that China has compelled TikTok to manipulate content elsewhere was enough for it to uphold a federal law signed by President Joe Biden that would force TikTok's sale in the United States to an American company or ban it from app stores.
The US District Court of Appeals of the District of Columbia found on Friday in a majority opinion that the federal law is constitutional. The law, which was passed in April, requires TikTok's Chinese parent company, Bytedance, to divest from the company by January 19 or face a ban in the United States.
US officials across political lines have worried that TikTok poses a national security risk because of its Chinese ownership. Some members of Congress have said they fear that TikTok could be used as a propaganda tool to push narratives favorable to China's Communist Party.
In statements supporting the bill, Democratic Massachusetts Rep. Jake Auchincloss called TikTok "a tool of censorship and propaganda" for the Chinese Communist Party, and Republican Nebraska Rep. Mike Flood said the app has "been used as a tool of propaganda in our country."
Still, the federal appeals court wrote in its majority opinion that the government did not present any evidence that China has tried to manipulate content on TikTok in the United States.
"The Government acknowledges that it lacks specific intelligence that shows the PRC has in the past or is now coercing TikTok into manipulating content in the United States," the opinion says, referring to the People's Republic of China. However, the government argued in court that ByteDance and TikTok have censored content at China's request in other countries.
The appeals court wrote that TikTok "never squarely denies" that it has ever manipulated content on its platform at China's request, which it says is "striking" given the intelligence community's concerns. The court concluded that Bytedance and TikTok have "a demonstrated history" of manipulating content in other countries, sometimes at the request of China.
"That conclusion rests on more than mere speculation," the judges wrote in the court opinion. "It is the Government's 'informed judgment' to which we give great weight in this context, even in the absence of 'concrete evidence' on the likelihood of PRC-directed censorship of TikTok in the United States."
TikTok argued in court that its "recommendation engine," or algorithm, is not based in China because it is stored in the Oracle cloud. The court said that while this is correct, ByteDance still controls the source code for TikTok, including the recommendation engine.
"TikTok is therefore correct to say the recommendation engine 'is stored in the Oracle cloud,' but gains nothing by flyspecking the Government's characterization of the recommendation engine still being in China," the document says.
A TikTok spokesperson said in a statement to Business Insider that the TikTok ban "was conceived and pushed through based on inaccurate, flawed, and hypothetical information, resulting in outright censorship of the American people."
"The Supreme Court has an established historical record of protecting Americans' right to free speech, and we expect they will do just that on this important constitutional issue," TikTok said in the statement.
Like many social media networks, TikTok has faced intense scrutiny for how the app is used to influence elections. The company this week announced that it removed three "influence networks" on the app that attempted to impact an election in Romania after a probe by the country's defense council. The company said it removed at least 40 similar influence campaigns this year.
