Read TikTok’s legal challenge (2024)

USCA Case #24-1113Document #2053212Filed: 05/07/2024Page 1 of 70IN THE UNITED STATES COURT OF APPEALSFOR THE DISTRICT OF COLUMBIA CIRCUITTIKTOK INC.,andBYTEDANCE LTD.,V.)Petitioners,No. 24-1113MERRICK B. GARLAND, in his officialcapacity as Attorney General of theUnited States,(Page 1 of Total)Respondent.PETITION FOR REVIEW OFCONSTITUTIONALITY OF THEPROTECTING AMERICANS FROM FOREIGNADVERSARY CONTROLLED APPLICATIONS ACT

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 2 of 702. That law1. Congress has taken the unprecedented step of expresslysingling out and banning TikTok: a vibrant online forum for protectedspeech and expression used by 170 million Americans to create, share,and view videos over the Internet. For the first time in history, Congresshas enacted a law that subjects a single, named speech platform to apermanent, nationwide ban, and bars every American from participatingin a unique online community with more than 1 billion people worldwide.the Protecting Americans From ForeignAdversary Controlled Applications Act (the "Act") is unconstitutional.Banning Tik Tok is so obviously unconstitutional, in fact, that even theAct's sponsors recognized that reality, and therefore have tried mightilyto depict the law not as a ban at all, but merely a regulation of TikTok'sownership. According to its sponsors, the Act responds to TikTok'sultimate ownership by ByteDance Ltd., a company with Chinesesubsidiaries whose employees support various Byte Dance businesses,including TikTok. They claim that the Act is not a ban because it offersByte Dance a choice: divest TikTok's U.S. business or be shut down.1― -1 References to "TikTok Inc." are to the specific U.S. corporate entity thatis a Petitioner in this lawsuit and publishes the TikTok platform in the1(Page 2 of Total)

USCA Case #24-1113Document #2053212Filed: 05/07/2024Page 3 of 703. But in reality, there is no choice. The "qualified divestiture"demanded by the Act to allow TikTok to continue operating in the UnitedStates is simply not possible: not commercially, not technologically, notlegally. And certainly not on the 270-day timeline required by the Act.Petitioners have repeatedly explained this to the U.S. government, andsponsors of the Act were aware that divestment is not possible. There isno question: the Act will force a shutdown of TikTok by January 19, 2025,silencing the 170 million Americans who use the platform tocommunicate in ways that cannot be replicated elsewhere.4. Of course, even if a "qualified divestiture" were feasible, theAct would still be an extraordinary and unconstitutional assertion ofpower. If upheld, it would allow the government to decide that a companymay no longer own and publish the innovative and unique speechUnited States. References to "TikTok" are to the online platform, whichincludes both the Tik Tok mobile application and web browser experience.References to “ByteDance Ltd." are to the specific Cayman Islands-incorporated holding company that is identified in the Act and is aPetitioner in this lawsuit. References to "ByteDance" are to theByteDance group, inclusive of ByteDance Ltd. and relevant operatingsubsidiaries. TikTok Inc. and ByteDance. Ltd. are together referred toas "Petitioners."(Page 3 of Total)21

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 4 of 70platform it created. If Congress can do this, it can circumvent the First.Amendment by invoking national security and ordering the publisher ofany individual newspaper or website to sell to avoid being shut down.And for Tik Tok, any such divestiture would disconnect Americans fromthe rest of the global community on a platform devoted to shared contentan outcome fundamentally at odds with the Constitution'scommitment to both free speech and individual liberty.5. There are good reasons why Congress has never beforeenacted a law like this. Consistent with the First Amendment'sguarantee of freedom of expression, the United States has longchampioned a free and open Internet-and the Supreme Court hasrepeatedly recognized that speech "conveyed over the Internet” fullyqualifies for “the First Amendment's protections." 303 Creative LLC v.Elenis, 600 U.S. 570, 587 (2023). And consistent with the fundamentalprinciples of fairness and equal treatment rooted in the Bill of AttainderClause and the Fifth Amendment, Congress has never before crafted atwo-tiered speech regime with one set of rules for one named platform,and another set of rules for everyone else.(Page 4 of Total)3

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 5 of 706. In dramatic contrast with past enactments that sought toregulate constitutionally protected activity, Congress enacted theseextreme measures without a single legislative finding. The Act does notarticulate any threat posed by Tik Tok nor explain why TikTok should beexcluded from evaluation under the standards Congress concurrentlyimposed on every other platform. Even the statements by individualMembers of Congress and a congressional committee report merelyindicate concern about the hypothetical possibility that TikTok could bemisused in the future, without citing specific evidence - even though theplatform has operated prominently in the United States since it was firstlaunched in 2017. Those speculative concerns fall far short of what isrequired when First Amendment rights are at stake.7. Nor is there any indication that Congress considered anynumber of less restrictive alternatives, such as those that Petitionersdeveloped with the Executive Branch after government agencies beganevaluating the security of U.S. user data and the risk of foreigngovernment influence over the platform's content as far back as 2019.While such concerns were never substantiated, Petitioners nevertheless(Page 5 of Total)4

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 6 of 70worked with the government for four years on a voluntary basis todevelop a framework to address the government's concerns.8. As part of this engagement, Petitioners have voluntarilyinvested more than $2 billion to build a system of technological andgovernance protections sometimes referred to as "Project Texas" - tohelp safeguard U.S. user data and the integrity of the U.S. TikTokplatform against foreign government influence. Petitioners have alsomade extraordinary, additional commitments in a 90-page draft NationalSecurity Agreement developed through negotiations with the Committeeon Foreign Investment in the United States ("CFIUS”), includingagreeing to a “shut-down option” that would give the government theauthority to suspend TikTok in the United States if Petitioners violatecertain obligations under the agreement.9. Congress tossed this tailored agreement aside, in favor of thepolitically expedient and punitive approach of targeting for disfavor onepublisher and speaker (TikTok Inc.), one speech forum (TikTok), and thatforum's ultimate owner (ByteDance Ltd.). Through the Act's two-tiered.structure, Congress consciously eschewed responsible industry-wide.regulation and betrayed its punitive and discriminatory purpose.5(Page 6 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 7 of 70Congress provided every other company however serious a threat to-national security it might pose - paths to avoiding a ban, excluding onlyTik Tok Inc. and ByteDance Ltd. Indeed, for any other company'sapplication to be banned, Congress mandated notice and a "public report"describing "the specific national security" concern, accompanied bysupporting classified evidence. For Petitioners only, however, there is nostatement of reasons and no supporting evidence, with any discussion ofthe justifications for a ban occurring only behind closed doors.10. Congress must abide by the dictates of the Constitution evenwhen it claims to be protecting against national security risks: “against[those] dangers ... as against others, the principle of the right to freespeech is always the same." Abrams v. United States, 250 U.S. 616, 628(1919) (Holmes, J., dissenting). Congress failed to do so here, and the Actshould be enjoined.11.Jurisdictional StatementPursuant to Sections 3(a) and 3(b) of the Act, H.R. 815, div. H,118th Cong., Pub. L. No. 118-50 (April 24, 2024), this Court has original(Page 7 of Total)6

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 8 of 70and exclusive jurisdiction over this challenge to the constitutionality ofthe Act. 2A.12.Background and Nature of ProceedingsTikTok Is a Speech Platform Used by 170 MillionAmericans.Tik Tok is an online video entertainment platform designed toprovide a creative and entertaining forum for users to express themselvesand make connections with others over the Internet. More than 170million Americans use TikTok every month, to learn about and shareinformation on a range of topics from entertainment, to religion, to-politics. Content creators use the TikTok platform to express theiropinions, discuss their political views, support their preferred politicalcandidates, and speak out on today's many pressing issues, all to a globalaudience of more than 1 billion users. Many creators also use the2 A copy of the Act is attached to this Petition as Exhibit A. Because thisPetition does not involve a challenge to any agency action, it is notgoverned by Federal Rule of Appellate Procedure 15(a). Petitionersintend to file a separate motion regarding the procedures governing thisoriginal proceeding. Petitioners summarize the pertinent facts andclaims below to facilitate this Court's review consistent with the practiceof a case-initiating pleading in a court of original jurisdiction, but reservetheir rights to present additional facts and arguments in due course.7(Page 8 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 9 of 70platform to post product reviews, business reviews, and travelinformation and reviews.13. In the United States, the TikTok platform is provided byTik Tok Inc., a California-incorporated company that has its principalplace of business in Culver City, California and offices in New York, SanJose, Chicago, and Miami, among other locations. TikTok Inc. hasthousands of employees in the United States. Like many platformsowned by companies that operate globally, the global TikTok platform issupported not only by those employees, but also by employees of otherByteDance subsidiaries around the globe, including in Singapore, theUnited Kingdom, Brazil, Germany, South Africa, Australia, and China.Many of the global TikTok platform's functions are spread acrossdifferent corporate entities and countries, and the global TikTok businessis led 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. Tik Tok Inc.'s ultimate parent company is ByteDance Ltd., aCayman Islands-incorporated equity holding company. Byte Dance wasfounded in 2012 by Chinese entrepreneurs. Over time, the companysought funding to fuel growth, as is common in the technology sector,8(Page 9 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 10 of 70which resulted in the issuance of additional equity and the dilution ofexisting shares. Today, approximately 58 percent of ByteDance Ltd. isowned by global institutional investors (such as BlackRock, GeneralAtlantic, and Susquehanna International Group), 21 percent is owned bythe company's founder (a Chinese national who lives in Singapore), and21 percent is owned by employees including approximately 7,000Americans.15. ByteDance launched TikTok in May 2017 in over 150countries, including the United States.³ Since its launch, TikTok hasbecome one of the world's most popular applications, with over 1 billionusers worldwide. As of January 2024, more than 170 million Americansuse TikTok on a monthly basis.16.Users primarily view content on TikTok through its "For You"page, which presents a collection of videos curated by TikTok'sproprietary recommendation engine. The recommendation enginecustomizes each user's content feed based on how the user interacts with3 Tik Tok was later relaunched in August 2018 following a transactioninvolving the company Musical.ly. See generally Petition for Review,Tik Tok Inc. v. CFIUS, No. 20-1444 (D.C. Cir. Nov. 10, 2020).9(Page 10 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 11 of 70the content that the user watches. TikTok's popularity is based in largepart on the effectiveness of the recommendation engine. The source codefor TikTok's recommendation engine was originally developed byByteDance engineers based in China, and the engine is customized foroperations in TikTok's various global markets, including in the UnitedStates. TikTok is not offered in mainland China.17. Aside from TikTok, ByteDance has developed and operatesmore than a dozen other online platforms and software applications foruse in U.S. and international markets, including for content-sharing,video and music editing, e-commerce, gaming, and enterpriseproductivity.B.18.The Government Previously Made Unlawful Attemptsto Ban TikTok.Petitioners' efforts to address the U.S. government's assertedconcerns regarding the TikTok platform date back to 2019. At that time,Petitioners began engaging with CFIUS, which had initiated a review ofByteDance Ltd.'s 2017 acquisition of Musical.ly, another Internet-basedvideo-sharing platform.(Page 11 of Total)10

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 12 of 7019. Petitioners were in the early stages of engaging with CFIUSon a voluntary basis to address the government's concerns, when onAugust 6, 2020, President Trump abruptly issued an executive orderpurporting to ban TikTok under the International Emergency EconomicPowers Act ("IEEPA”), 50 U.S.C. §§ 1701-08. See 85 Fed. Reg. 48,637(the "Ban Order"). Two separate district courts preliminarily enjoinedthe Ban Order, concluding (among other things) that it exceeded thePresident's IEEPA authority. 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. Specifically, as these courts correctly recognized, thePresident's IEEPA authority "to deal with any unusual andextraordinary threat" to the nation “does not include the authority toregulate or prohibit, directly or indirectly...[any] personalcommunication” or the importation or exportation “of any information orinformational materials.” 50 U.S.C. § 1702(b)(1), (3). These restrictionson the President's IEEPA authority-which Congress expanded throughmultiple amendments to the statute were designed “to prevent thestatute from running afoul of the First Amendment.” United States v.11(Page 12 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 13 of 70Amirnazmi, 645 F.3d 564, 585 (3d Cir. 2011) (quotation marks omitted);see also Kalantari v. NITV, Inc., 352 F.3d 1202, 1205 (9th Cir. 2003)(IEEPA's limitations necessary “to prevent the executive branch fromrestricting the international flow of materials protected by the First.Amendment"); Marland, 498 F. Supp. 3d at 629 (same).21. Looking to the foundational First Amendment principlescodified in IEEPA's text and legislative history, these courts concludedthat President Trump's efforts to ban TikTok violated the statute andraised "serious" constitutional questions (which were unnecessary todecide under the doctrine of constitutional avoidance). Tik Tok Inc., 507F. Supp. 3d at 112 n.6; TikTok Inc., 490 F. Supp. 3d at 83 n.3. The courtsgranted the government's motions to voluntarily dismiss its appeals afterPresident Biden withdrew the Ban Order. See Tik Tok Inc. v. Biden, No.20-5302, 2021 WL 3713550 (D.C. Cir. July 20, 2021); Tik Tok Inc. v.Biden, No. 20-5381, 2021 WL 3082803 (D.C. Cir. July 14, 2021); Marlandv. Trump, No. 20-3322, 2021 WL 5346749 (3d Cir. July 14, 2021).22. Separately, acting on a CFIUS referral, President Trump onAugust 14, 2020 issued an order under Section 721 of the DefenseProduction Act, 50 U.S.C. § 4565, purporting to direct ByteDance to12(Page 13 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 14 of 70divest from TikTok's U.S. business and U.S. user data. 85 Fed. Reg.51,297 (the "Divestment Order"). On November 10, 2020, Petitionerspetitioned this Court for review of the Divestment Order and underlyingCFIUS actions, arguing, among other things, that the government lackedjurisdiction under the statute. See Petition for Review, TikTok Inc. v.CFIUS, No. 20-1444 (D.C. Cir. Nov. 10, 2020). That petition was held inabeyance in February 2021 on the parties' joint motion to allow theparties to negotiate a resolution. The government has filed status reportsevery 60 days since then, most recently on April 22, 2024. Those statusreports have consistently reported that “[t]he parties continue to beinvolved in ongoing negotiations” and “[a] beyance continues to beappropriate.” See, e.g., Status Report, Tik Tok Inc. v. CFIUS, No. 20-1444(D.C. Cir. Apr. 22, 2024).23. Between January 2021 and August 2022, Petitioners andCFIUS engaged in an intensive, fact-based process to develop a NationalSecurity Agreement that would resolve the U.S. government's concernsabout whether Chinese authorities might be able to access U.S. user dataor manipulate content on TikTok, as well as resolve the pending CFIUSDuring that time, Petitioners and government officialsdispute.13(Page 14 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 15 of 70communicated regularly, often several times a week - including several-in-person meetings about the government's concerns and potentialsolutions. The result was an approximately 90-page draft NationalSecurity Agreement with detailed annexes embodying a comprehensivesolution addressing the government's national security concerns.Notably, the draft National Security Agreement provided that allprotected U.S. user data (as defined in the agreement) would be stored inthe cloud environment of a U.S.-government-approved partner, OracleCorporation, which would also review and vet the TikTok source code.24. From Petitioners' perspective, all indications were that theywere nearing a final agreement. After August 2022, however, CFIUSwithout explanation stopped engaging with Petitioners in meaningfuldiscussions about the National Security Agreement.Petitionersrepeatedly asked why discussions had ended and how they might berestarted, but they did not receive a substantive response. In March2023, without providing any justification for why the draft NationalSecurity Agreement was inadequate, CFIUS insisted that Byte Dancewould be required to divest the U.S. TikTok business.(Page 15 of Total)14

USCA Case #24-1113 Document #2053212Filed: 05/07/2024 Page 16 of 7025. Since March 2023, Petitioners have explained to CFIUS, inmultiple written communications and in-person meetings, that adivestiture of the U.S. TikTok business from the rest of the integratedglobal Tik Tok platform and business of the sort now required by the Actis not feasible. CFIUS has never articulated any basis for disagreeingwith that assessment, offering instead only a conclusory assertion thatthe reason ByteDance was not divesting was because it was simplyunwilling to do so. The Act nonetheless incorporates precisely such aninfeasible divestiture standard.C.26.A Divestiture that Severs TikTok's U.S. OperationsFrom the Rest of the Globally Integrated TikTokBusiness Is Not Commercially, Technologically, orLegally Feasible.The Act purports to allow Petitioners to avoid a ban byexecuting a "qualified divestiture." Sec. 2(c). But that alternative isillusory because, as Petitioners have repeatedly explained to CFIUS, thedivestiture of the TikTok U.S. business and its severance from theglobally integrated platform of which it is an integral part is notcommercially, technologically, or legally feasible.(Page 16 of Total)15

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 17 of 70-27. First, a standalone U.S. TikTok platform would not becommercially viable. TikTok and its competitors are globally integratedplatforms where content created in one country is available to users inother countries. Indeed, a substantial part of TikTok's appeal is therichness of the international content available on the platform fromglobal sporting events like the Olympics to international K-pop starsfrom South Korea, as well as videos created by U.S. creators and enjoyedby audiences worldwide. A divestment of the U.S. TikTok platform,without any operational relationship with the remainder of the globalplatform, would preclude the interoperability necessary to makeinternational content seamlessly available in the U.S. market and viceversa. As a result, the U.S. TikTok platform would become an “island”where Americans would have an experience detached from the rest of theglobal platform and its over 1 billion users. Such a limited pool of content,in turn, would dramatically undermine the value and viability of the U.S.TikTok business.44 The contemplated qualified divestiture would also undercut theimportant role currently played by American voices in the globalconversation ongoing on TikTok.16(Page 17 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 18 of 7028. Second, precipitously moving all TikTok source codedevelopment from ByteDance to a new Tik Tok owner would be impossibleas a technological matter. The platform consists of millions of lines ofsoftware code that have been painstakingly developed by thousands ofengineers over multiple years. Although much of this code is basicinfrastructure for running the global TikTok platform and has nothing atall to do with TikTok's recommendation algorithm, the statute requiresthat all of this code be wrested from Petitioners, so that there is no“operational relationship" between ByteDance and the new U.S.platform. Specifically, to comply with the law's divestiture requirement,that code base would have to be moved to a large, alternative team ofengineers a team that does not exist and would have no understandingof the complex code necessary to run the platform. It would take yearsfor an entirely new set of engineers to gain sufficient familiarity with thesource code to perform the ongoing, necessary maintenance anddevelopment activities for the platform. Moreover, to keep the platformfunctioning, these engineers would need access to ByteDance softwaretools, which the Act prohibits. Such a fundamental rearchitecting is not-(Page 18 of Total)17

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 19 of 70remotely feasible on anything approaching the 270-day timeframecontemplated by the Act.29. Third, the Chinese government has made clear that it wouldnot permit a divestment of the recommendation engine that is a key tothe success of TikTok in the United States. Like the United States,5China regulates the export of certain technologies originating there.China's export control rules cover “information processing technologies”such as "personal interactive data algorithms.”6 China's official newsagency has reported that under these rules, any sale of recommendationalgorithms developed by engineers employed by ByteDance subsidiariesin China, including for TikTok, would require a government license.5 For example, the U.S. Department of Commerce has issued restrictionson the export to China of advanced chips that can be used to trainartificial intelligence models. E.g., Implementation of Additional ExportControls: Certain Advanced Computing Items; Supercomputer andSemiconductor End Use; Updates and Corrections, 88 Fed. Reg. 73458(Oct. 25, 2023) (to be codified at 15 C.F.R. § 732.2 et seq.).6 See Karen M. Sutter, Cong. Rsch. Serv., IN11524, China Issues NewExport Control Law and Related Policies 2 (2020).7 Paul Mozur, Raymond Zhong & David McCabe, Tik Tok Deal IsComplicated by New Rules From China Over Tech Exports, N.Y. Times(Aug. 29, 2020), https://perma.cc/L6RB-CTT9.18(Page 19 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024 Page 20 of 70China also enacted an additional export control law that "gives theChinese government new policy tools and justifications to deny andimpose terms on foreign commercial transactions."8 China adopted theseenhanced export control restrictions between August and October 2020,shortly after President Trump's August 6, 2020 and August 14, 2020executive orders targeting TikTok. By doing so, the Chinese governmentclearly signaled that it would assert its export control powers withrespect to any attempt to sever TikTok's operations from ByteDance, andthat any severance would leave TikTok without access to therecommendation engine that has created a unique style and communitythat cannot be replicated on any other platform today.D.30.The Act Bans TikTok and Other Byte DanceApplications.On April 24, 2024, the President signed the ProtectingAmericans from Foreign Adversary Controlled Applications Act.31. The Act prohibits, on pain of draconian penalties, “onlinemobile application store[s]" and "internet hosting services" from servicing"foreign adversary controlled application[s]" within the United States.8 Sutter, supra n.6.19(Page 20 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 21 of 70See Sec. 2(a), 2(d)(1)(A). This includes the "distribution, maintenance, orupdating" of a covered application through an online marketplace.Sec. 2(a)(1).32. Section 2(g) (3) creates two classes of "foreign adversarycontrolled applications" covered by the Act.33. The first class singles out only one corporate group:"Byte Dance[] Ltd.,” “TikTok,” their “subsidiar[ies] or successor[s]" thatare "controlled by a foreign adversary," or any entity "owned orcontrolled" by the aforementioned.9 The Act deems any application.operated by these entities a “foreign adversary controlled application,"without any finding about why any particular application much less--every application operated by these entities should be so designated.See Sec. 2(g)(3)(A).9 “TikTok” is a platform, not a legal entity. Petitioners assume thatCongress intended this provision to be a reference to TikTok Inc., andfurther reserve their rights to amend this Petition to include additionalTik Tok entities to the extent the government takes the position thatother entities are covered by this reference. In any event, TikTok Inc. iscovered as an entity “owned or controlled" by ByteDance Ltd.20(Page 21 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 22 of 7034. The second class creates a discretionary process by which thePresident can designate other companies whose applications will alsoeffectively be banned. Under these provisions, the President maydesignate an application as a "foreign adversary controlled application"if several qualifications are met:a. Covered Company. The website or application is operateddirectly or indirectly by a "covered company" - i.e., acompany that operates a website or application thatpermits users to share content and has at least 1 millionmonthly active users. See Sec. 2(g)(2)(A).b. Controlled by a Foreign Adversary. The "covered company"operating the website or application must also be"controlled by a foreign adversary," meaning it is"headquartered in, has its principal place of business in, oris organized under the laws" of a "foreign adversarycountry," which currently includes China, North Korea,Russia, and Iran. Sec. 2(g)(1)(A), (g)(4); see also 10 U.S.C.§ 4872(d)(2). A company may also be "controlled by aforeign adversary" if persons domiciled in any of the21(Page 22 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 23 of 70(Page 23 of Total)specified countries (i.e., China, Iran, Russia, or NorthKorea) directly or indirectly own at least 20 percent of thecompany. Sec. 2(g)(1)(B).c. Not Exempt under Sec. 2(g)(2)(B).But Congressspecifically exempted from the term “covered company"any "entity that operates" a website or application "whoseprimary purpose is to allow users to post product reviews,business reviews, or travel information and reviews." Anentity that operates a single website or application of thisnature thus cannot be a “covered company,” even if it is"controlled by a foreign adversary," poses a significantnational security risk, and separately operates anapplication whose primary purpose is anything other thanallowing users to post reviews. Sec. 2(g)(2)(B).d. Presidential Determination, Notice and Report, andJudicial Review. Finally, the President must determinethat such a company presents “a significant threat to thenational security of the United States." Sec. 2(g)(3)(B)(ii).Before making such a determination, the President must22

USCA Case #24-1113Document #2053212Filed: 05/07/2024Page 24 of 70issue public notice proposing the determination and thenprovide a public report to Congress describing "the specificnational security concern involved," supplemented by aclassified annex, and also explain "what assets would needto be divested to execute a qualified divestiture." Id. Thesepresidential determinations are then subject to judicialreview. Sec. 3(a).35. Section 2(c) exempts a "foreign adversary controlledapplication[]" from the Act's prohibitions if the company that operatesthe application executes a “qualified divestiture." Sec. 2(c). ThePresident must determine that such divestiture would (1) "result in therelevant covered company no longer being controlled by a foreignadversary," and (2) “preclude[] the establishment or maintenance of anyoperational relationship" between the application's U.S. operations andany formerly affiliated entities that are controlled by a foreign adversary,including "any cooperation with respect to the operation of a content.recommendation algorithm." Sec. 2(c), (g) (6). As noted above, the Act'sbroad definition of "controlled by a foreign adversary" includes, amongother things, any entity organized under the laws of a "foreign adversary23(Page 24 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 25 of 70country," or any entity in which a foreign person domiciled in a foreignadversary country holds at least a 20 percent ownership stake.Sec. 2(g)(1), (3)(B)(i), (4).36. The prohibition on providing Internet hosting and mobileapplication store services to TikTok and other ByteDance applications.takes effect 270 days after enactment. Sec. 2(a)(2)(A). The Presidentmay extend this deadline, but only for 90 days maximum, and only if thePresident certifies to Congress that a path to executing a qualifieddivestiture has been identified, evidence of significant progress towardexecuting that qualified divestiture has been produced, and the relevantbinding legal agreements to enable execution of the qualified divestitureare in place.37."Before the date on which [this] prohibition" takes effect,Petitioners are required to provide, upon request by any U.S. user of anyof their applications, “all the available data related to the account of suchuser with respect to such application." Sec. 2(b).1010 Because Section 2(b)'s data portability requirement applies "[b]efore"the prohibition under Section 2(a) takes effect, it cannot be "given effect"without Section 2(a) for purposes of Section 2(e)(1) of the Act, whichprovides that "[i]f any provision of this section or the application of this24(Page 25 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 26 of 7038. Because the Act lacks any legislative findings or a statementof purpose, Petitioners and the more than 170 million American monthlyusers of TikTok are left to scrutinize statements from individualMembers of Congress and other sources to try to discern any purportedjustification for this extraordinary intrusion on free speech rights. Basedon these sources, it appears at least some Members of Congress soughtto address "two threats" that could emerge from foreign ownership ofcommunications platforms. 1139. First, they may have sought to protect U.S. users' “datasecurity."12 According to the House Committee Report for an earlierversion of the Act, mobile applications, including those that are notsection to any person or circ*mstance is held invalid, the invalidity shallnot affect the other provisions or applications of this section that can begiven effect without the invalid provision or application." BecauseSection 2(a) violates the Constitution for the reasons set forth herein,Section 2(b) is accordingly "not operative in the absence of theunconstitutional provision.” Barr v. Am. Ass'n of Pol. Consultants, Inc.,140 S. Ct. 2335, 2352 n.9 (2020).11 Jane Coaston, What the Tik Tok Bill Is Really About, According to aLeading Republican, N.Y. Times (Apr. 1, 2024), https://perma.cc/BL32-786X (quoting the Act's original sponsor, Rep. Mike Gallagher).12 Id.(Page 26 of Total)25

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 27 of 70controlled by foreign adversaries, can “collect vast amounts of data onAmericans."13 The House Committee Report expressed a concern thatsuch data could be used by a foreign adversary to "conduct espionagecampaigns," such as by tracking specific individuals. 1440.Second, others in Congress appear to have been motivated bya "greater concern": an alleged "propaganda threat." 15 One proponent ofthe Act stated that communications applications could be used to "pushmisinformation, disinformation, and propaganda on the Americanpublic."16 Another supporter claimed in the House Select Committeepress release accompanying the bill's introduction that “[TikTok] is ...poisoning the minds of our youth every day on a massive scale."1713 H.R. Comm. on Energy & Com., Protecting Americans from ForeignAdversary Controlled Applications Act, H.R. Rep. No. 118-417 at 2 (2024)(hereinafter the "House Committee Report").14 Id.15 Coaston, supra n.11 (quoting Rep. Gallagher).16 House Committee Report at 2.17 Press Release, U.S. House Select Comm. on Strategic CompetitionBetween the U.S. and the Chinese Communist Party, Gallagher,Bipartisan Coalition Introduce Legislation to Protect Americans FromForeign Adversary Controlled Applications, Including TikTok (Mar. 5,2024), https://perma.cc/KC5T-6AX3.(Page 27 of Total)26

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 28 of 70E.Congress Disregarded Alternatives to Banning TikTok,Such as the National Security Measures PetitionersNegotiated with the Executive Branch.41. Petitioners have demonstrated a commitment to addressingboth of those concerns without the need to resort to the drastic,unconstitutional step of shuttering one of the most widely used forumsfor speech in the United States. The 90-page draft National SecurityAgreement that Petitioners developed withPetitioners developed with CFIUS would, ifimplemented, provide U.S. TikTok users with protections more robustthan those employed by any other widely used online platform in theindustry.42.The draft National Security Agreement contains severalmeans of ensuring data security without banning TikTok. All protectedU.S. user data (as defined in the National Security Agreement) would besafeguarded in the United States under a special corporate structure:TikTok U.S. Data Security (a new subsidiary of Tik Tok Inc.). A specialboard, with Security Directors whose appointment would be subject tothe U.S. government's approval, would oversee TikTok U.S. DataSecurity, and in turn exclude ByteDance and all of its other subsidiariesand affiliates from such responsibilities. Further separation between the27(Page 28 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 29 of 70U.S. TikTok business and Byte Dance subsidiaries and affiliates,including TikTok in the rest of the world, would be achieved byappointing a U.S.-government-approved Security Director to the board ofTik Tok Inc. Protected U.S. user data would be stored in the cloudenvironment of aU.S.-government-approvedpartner, OracleCorporation, with access to such data managed by TikTok U.S. DataSecurity.43. The draft Agreement would also protect against the concernabout content manipulation and propaganda.Multiple layers ofprotection address concerns related to content available on the TikTokplatform, including ensuring that all content moderation - both humanand algorithmic➖would be subject to third-party verification andmonitoring. The concern about content manipulation would also beaddressed by securing all software code through Oracle Corporation, aU.S. trusted technology provider. The Tik Tok U.S. platform andapplication would be deployed through the Oracle cloud infrastructureand subject to source code review and vetting by Oracle with anotherU.S.-government-approved third party responsible for conductingsecurity inspections. As part of this process, Oracle and third parties28(Page 29 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 30 of 70approved by CFIUS would conduct independent inspections of theTik Tok recommendation engine.44. The draft Agreement also includes strict penalties fornoncompliance, including a "shut-down option," giving the governmentthe authority to suspend TikTok in the United States in response tospecified acts of noncompliance. The Agreement also provides significantmonetary penalties and other remedies for noncompliance.45. Although the government has apparently abandoned thedraft National Security Agreement, Petitioners have not. TikTok Inc.has begun the process of voluntarily implementing the National SecurityAgreement's provisions to the extent it can do so without the U.S.government's cooperation, including by incorporating and staffing theTikTok U.S. Data Security entity, and by partnering with OracleCorporation on the migration of the U.S. platform and protected U.S. userdata to Oracle's cloud environment.46. To date, Petitioners have spent more than $2 billion toimplement these measures and resolve the very concerns publiclyexpressed by congressional supporters of the Act all without theoverbroad and unconstitutional method of an outright ban.29(Page 30 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 31 of 70Grounds On Which Relief Is SoughtPetitioners seek review of the constitutionality of the Act ongrounds that include, without limitation, the following.Ground 1: Violation of the First Amendment47. The First Amendment to the U.S. Constitution provides that"Congress shall make no law. . . abridging the freedom of speech." U.S.Const., amend. I.48. By banning all online platforms and software applicationsoffered by "TikTok" and all ByteDance subsidiaries, Congress has madea law curtailing massive amounts of protected speech. Unlike broadcasttelevision and radio stations, which require government licenses tooperate because they use the public airwaves, the government cannot,consistent with the First Amendment, dictate the ownership ofnewspapers, websites, online platforms, and other privately created.speech forums.49. Indeed, in the past, Congress has recognized the importanceof protecting First Amendment rights, even when regulating in theinterest of national security. For example, Congress repeatedly amendedIEEPA which grants the President broad authority to address national30(Page 31 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 32 of 70emergencies that pose "unusual and extraordinary threat[s]" to thecountry to expand protections for constitutionally protected materials.50 U.S.C. §§ 1701-02. Accordingly, under IEEPA, the President does nothave the authority to even indirectly regulate "personal communication"or the importation or exportation "of any information or informationalmaterials,” id. § 1702(b)(1), (3)limitations that are necessary "toprevent the statute from running afoul of the First Amendment,"Amirnazmi, 645 F.3d at 585. Yet Congress has attempted to sidestepthese statutory protections aimed at protecting Americans' constitutionalrights, preferring instead to simply enact a new statute that tries to avoidthe constitutional limitations on the government's existing statutoryThose statutory protections were evidently seen as animpediment to Congress's goal of banning TikTok, so the Act dispensedauthority.with them.50. The Act's alternative to a ban a so-called “qualified--divestiture" is illusory to the point of being no alternative at all. Asexplained above, divesting TikTok Inc.'s U.S. business and completelysevering it from the globally integrated platform of which it is a part isnot commercially, technologically, or legally feasible.31(Page 32 of Total)

USCA Case #24-1113Document #2053212Filed: 05/07/2024Page 33 of 7051.The Act will therefore have the effect of shutting down TikTokin the United States, a popular forum for free speech and expression usedby over 170 million Americans each month. And the Act will do so basednot on any proof of a compelling interest, but on speculative andanalytically flawed concerns about data security and contentmanipulation concerns that, even if grounded in fact, could be-addressed through far less restrictive and more narrowly tailored means.52. Petitioners' protected speech rights. The Act burdensTik Tok Inc.'s First Amendment rights in addition to the free speech-rights of millions of people throughout the United States in two ways.-53. First, Petitioner TikTok Inc. has a First Amendment interestin its editorial and publishing activities on TikTok. See Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 570 (1995).TikTok “is more than a passive receptacle or conduit for news, comment,and advertising" of others; TikTok Inc.'s "choice of material" torecommend or forbid “constitute[s] the exercise of editorial control andjudgment" that is protected by the First Amendment. Miami Herald Pub.Co. v. Tornillo, 418 U.S. 241, 258 (1974); see also Alario v. Knudsen,(Page 33 of Total)32

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 34 of 70- F. Supp. 3d, 2023 WL 8270811, at *6 (D. Mont. Nov. 30, 2023)(recognizing Tik Tok Inc.'s First Amendment editorial rights).54. As the government itself has acknowledged, “[w]hen [socialmedia] platforms decide which third-party content to present and how topresent it, they engage in expressive activity protected by the FirstAmendment because they are creating expressive compilations ofspeech." Br. for United States as Amicus Curiae at 12-13, Moody v.NetChoice LLC, No. 22-277 (U.S.), 2023 WL 8600432; see also id. at 18-19, 25-26.55. Second, Tik Tok Inc. is among the speakers whose expressionthe Act prohibits. TikTok Inc. uses the TikTok platform to create andshare its own content about issues and current events, including, forexample, its support for small businesses, Earth Day, and literacy andeducation. 18 When TikTok Inc. does so, it is engaging in core speechprotected by the First Amendment. See Sorrell v. IMS Health Inc., 56418 Tik Tok (@tiktok), TikTok, https://www.tiktok.com/t/ZTL9QsTYs/ (lastvisited May 6, 2024); TikTok (@tiktok), TikTok,https://www.tiktok.com/t/ZTL9QbSHv/ (last visited May 6, 2024); TikTok(@tiktok), TikTok, https://www.tiktok.com/t/ZTL9QXE7R/ (last visitedMay 6, 2024).(Page 34 of Total)33

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 35 of 70U.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). The Actprecludes TikTok Inc. from expressing itself over that platform.56. Even if the U.S. TikTok platform could be divested, which itcannot for the reasons explained above, TikTok Inc.'s protected speechrights would still be burdened. Because the Act appears to conclusivelydetermine that any application operated by "TikTok" - a term that—Congress presumably meant to include Tik Tok Inc. is a foreignadversary controlled application, Sec. 2(g)(3)(A), the President appearsto lack the power to determine that a TikTok Inc.-owned application is"no longer being controlled by a foreign adversary" and has no“operational relationship" with “formerly affiliated entities that arecontrolled by a foreign adversary," Sec. 2(g)(6)(A) & (B). The Acttherefore appears to conclusively eliminate TikTok Inc.'s ability to speakthrough its editorial and publishing activities and through its own.account on the TikTok platform.57.For similar reasons, the Act burdens the First Amendmentrights of other ByteDance subsidiaries to reach their U.S. user audiences,(Page 35 of Total)34

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 36 of 70since those companies are likewise prohibited from speaking andengaging in editorial activities on other ByteDance applications.58. The Act is subject to strict scrutiny. The Act's restrictionson Petitioners' First Amendment rights are subject to strict scrutiny forthree independent reasons.59. First, the Act represents a content- and viewpoint-basedrestriction on protected speech. The Act discriminates on a content basisbecause it exempts platforms "whose primary purpose" is to host specifictypes of content: "product reviews, business reviews, or travelinformation and reviews.” Sec. 2(g)(2)(B). The Act thus “distinguish[es]favored speech"-i.e., speech concerning travel information andbusiness reviews "from disfavored speech" ―i.e., all other types of-speech, including particularly valuable speech like religious and politicalcontent. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 643 (1994).60. The Act also discriminates on a viewpoint basis because itappears to have been enacted at least in part because of concerns overthe viewpoints expressed in videos posted on TikTok by users of theplatform. For example, the House Committee Report asserted, withoutsupporting evidence, that Tik Tok "can be used by [foreign adversaries] to35(Page 36 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 37 of 70push misinformation, disinformation, and propaganda on theAmerican public" 19 a concern that in any event could be raised aboutany platform for user-generated content. See infra ¶¶82, 87. Similarly,Rep. Raja Krishnamoorthi, who co-sponsored the Act, expressed theunsubstantiated concern that “the platform continued to show dramaticdifferences in content relative to other social media platforms."2061. Second, the Act discriminates between types of speakers. Asexplained above, TikTok Inc. is a protected First Amendment speakerwith respect to the TikTok platform. The Act facially discriminatesbetween Tik Tok Inc. and other speakers depending on the "primarypurpose” of the platforms they operate. Any application offered byPetitioners is automatically deemed a “foreign adversary controlledapplication,” without any exclusions or exceptions. Sec. 2(g)(3)(A). Bycontrast, any other company's application can be deemed a "foreignadversary controlled application” only if the company does not operate a19 House Committee Report at 2.20 Sapna Maheshwari, David McCabe & Annie Karni, House Passes Billto Force Tik Tok Sale From Chinese Owner or Ban the App, N.Y. Times(Mar. 13, 2024), https://perma.cc/Z7UE-WYH6.(Page 37 of Total)36

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 38 of 70website or application "whose primary purpose is to allow users to postproduct reviews, business reviews, or travel information and reviews."Sec. 2(g)(2)(B). The Act thus favors speakers that do offer such websitesor applications over speakers that do not.62. Moreover, the Act singles out TikTok Inc. and othersubsidiaries of ByteDance for unique disfavor in other ways. Whereasother companies with ownership in a country deemed a "foreignadversary" become subject to the Act's restrictions only upon apresidential determination that the company poses "a significant threatto the national security of the United States,” Sec. 2(g)(3)(B), ByteDanceLtd. and its subsidiaries are automatically subject to the Act's draconianrestrictions by fiat, Sec. 2(g)(3)(A). The standard and process that theAct specifies for every other company likely fall short of what is required.by the First Amendment and other applicable constitutional protections,but TikTok Inc. and ByteDance have been singled out for a dramaticallydifferent, even more clearly unconstitutional regime with no publicnotice, no process for a presidential determination that there is asignificant national security threat, no justification of that determinationby a public report and submission of classified evidence to Congress, and37-(Page 38 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 39 of 70no judicial review for statutory and constitutional sufficiency based onthe reasons set forth in the presidential determination. The Act alsodraws a speaker-based distinction insofar as it specifically namesByte Dance Ltd. and TikTok, and also exempts applications with fewerthan 1 million monthly users (except if those applications are operatedby ByteDance Ltd. or TikTok). Sec. 2(g)(2)(A)(ii), (3)(A).63.A statutory restriction targeting specific classes of speakers issubject to strict scrutiny. See United States v. Playboy Ent. Grp., Inc.,529 U.S. 803, 812 (2000) ("Laws designed or intended to suppress orrestrict the expression of certain speakers contradict basic FirstAmendment principles."). And that is especially true when, as here, theAct singles out Petitioners by name for uniquely disfavored treatmentand congressional statements indicate that the Act targets Petitioners inpart because of concerns about the content on TikTok. Because the Act"target[s]" both "speakers and their messages for disfavored treatment,”strict scrutiny review is required. Sorrell, 564 U.S. at 565; see alsoTurner, 512 U.S. at 658-60.64.Third, the Act is subject to strict scrutiny as an unlawful priorrestraint. The Supreme Court has "consistently" recognized in a "long38(Page 39 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 40 of 70line" of cases that government actions that “deny use of a forum inadvance of actual expression" or forbid “the use of public places [forplaintiffs] to say what they wanted to say" are prior restraints. Se.Promotions, Ltd. v. Conrad, 420 U.S. 546, 552-53 (1975). “[P]riorrestraints on speech and publication are the most serious and the least.tolerable infringement on First Amendment rights." Nebraska PressAss'n v. Stuart, 427 U.S. 539, 559 (1976). The Act suppresses speech inadvance of its actual expression by prohibiting all U.S. TikTok usersincluding Petitioner Tik Tok Inc. - from communicating on the platform.See Backpage.com, LLC v. Dart, 807 F.3d 229 (7th Cir. 2015) (defendant'sconduct restricting the operator of classified advertising website was aprior restraint); Org. for a Better Austin v. Keefe, 402 U.S. 415, 418–19(1971) (ban on distributing leaflets a prior restraint); U.S. WeChat UsersAll. v. Trump, 488 F. Supp. 3d 912, 926 (N.D. Cal. 2020) (ban oncommunications application a prior restraint). The same is true of otherByte Dance subsidiaries and their platforms. Such restrictions “bear[] aheavy presumption against [their] constitutional validity." Se.Promotions, 420 U.S. at 558.(Page 40 of Total)39

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 41 of 7065. The Act fails strict scrutiny because it does not furthera compelling interest. Strict scrutiny “requires the Government toprove that the restriction [1] furthers a compelling interest and [2] isnarrowly tailored to achieve that interest." Reed v. Town of Gilbert, 576U.S. 155, 171 (2015) (numerical alterations added). "If a less restrictivealternative would serve the Government's purpose, the legislature mustuse that alternative." Playboy, 529 U.S. at 813. The Act fails on bothcounts.66.The Act does not further a compelling interest. To be sure,national security is a compelling interest, but the government must showthat the Act furthers that interest. To do so, the government "must domore than simply posit the existence of the disease sought to be cured."Turner, 512 U.S. at 664 (plurality op.). Rather, it “must demonstrate thatthe recited harms are real, not merely conjectural, and that theregulation will in fact alleviate these harms in a direct and materialway." Id.67. Congress itself has offered nothing to suggest that the TikTokplatform poses the types of risks to data security or the spread of foreignpropaganda that could conceivably justify the Act. The Act is devoid of40(Page 41 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 42 of 70any legislative findings, much less a demonstration of specific harms thatTik Tok supposedly poses in either respect, even though the platform wasfirst launched in 2017.68. The statements of congressional committees and individualMembers of Congress during the hasty, closed-door legislative processpreceding the Act's enactment confirm that there is at most speculation,not "evidence,” as the First Amendment requires. Instead of setting outevidence that TikTok is actually compromising Americans' data securityby sharing it with the Chinese government or spreading pro-Chinapropaganda, the House Committee Report for an earlier version of theAct relies repeatedly on speculation that Tik Tok could do those things.See, e.g., House Committee Report at 6 (TikTok could “potentially [be]allowing the CCP 'to track the locations of Federal employees andcontractors") (emphasis added) (quoting Exec. Order 13,942, 85 Fed. Reg.48637, 48637 (Aug. 6, 2020)); id. at 8 (discussing "the possibility that the[CCP] could use [TikTok] to control data collection on millions of users")(emphasis added); id. ("Tik Tok has sophisticated capabilities that createthe risk that [it] can ……. suppre[ss] statements and news that the PRCdeems negative") (emphasis added). Speculative risk of harm is simply41(Page 42 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 43 of 70not enough when First Amendment values are at stake. These risks areeven more speculative given the other ways that the Chinese governmentcould advance these asserted interests using a variety of intelligencetools and commercial methods. See infra ¶¶¶ 85–87.69. The conjectural nature of these concerns are furtherunderscored by President Biden's decision to continue to maintain aTik Tok account for his presidential campaign even after signing the Actinto law. 21 Congressional supporters of the Act have also maintainedcampaign accounts on TikTok. 22 This continued use of TikTok byPresident Biden and Members of Congress undermines the claim that theplatform poses an actual threat to Americans.70. Further, even if the government could show that TikTok oranother ByteDance-owned application "push[es] misinformation,disinformation, and propaganda on the American public," House21 Monica Alba, Sahil Kapur & Scott Wong, Biden Campaign Plans toKeep Using Tik Tok Through the Election, NBC News (Apr. 24, 2024),https://perma.cc/QPQ5-RVAD.22 Tom Norton, These US Lawmakers Voted for Tik Tok Ban But Use ItThemselves, Newsweek (Apr. 17, 2024), https://perma.cc/AQ5F-N8XQ.At least one Member created a TikTok account after the Act was enacted.See https://perma.cc/L3GT-7529.(Page 43 of Total)42

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 44 of 70Committee Report at 2, the government would still lack a compellinginterest in preventing Americans from hearing disfavored speech.generated by TikTok users and shared on the platform just because thegovernment considers it to be foreign "propaganda." See Lamont v.Postmaster Gen. of U.S., 381 U.S. 301, 305 (1965).71. The Act also offers no support for the idea that otherapplications operated by subsidiaries of ByteDance Ltd. pose nationalsecurity risks. Indeed, the legislative record contains no meaningfuldiscussion of any ByteDance-owned application other than TikTok― letalone evidence “proving” that those other applications pose such risks.Reed, 576 U.S. at 171.72.-The Act also provides neither support nor explanation forsubjecting Petitioners to statutory disqualification by legislative fiatwhile providing every other platform, and users of other platforms, witha process that includes a statutory standard for disqualification, notice,a reasoned decision supported by evidence, and judicial review based onthose specified reasons. Only Petitioners are subjected to a regime thathas no notice and no reasoned decision supported by evidence - openingthe door to, among other things, post-hoc arguments that may not have43(Page 44 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 45 of 70been the basis for the government action. The Supreme Court recentlyexplained that the requirement of a "reasoned explanation" is "meant toensure that [the government] offer[s] genuine justifications for importantdecisions, reasons that can be scrutinized by courts and the interestedpublic. Accepting contrived reasons would defeat the purpose of theenterprise." Dep't of Com. v. New York, 139 S. Ct. 2551, 2576 (2019).Depriving Petitioners of those protections imposes a dramatically heavierburden on the free speech rights of Petitioners and TikTok users that iswholly unjustified and certainly not supported by a compelling interest.The Act also fails strict scrutiny because it is notnarrowly tailored. "Even where questions of allegedly urgent nationalsecurity. . . are concerned," the government must show that "the evil thatwould result from the [restricted speech] is both great and certain andcannot be mitigated by less intrusive measures.” CBS, Inc. v. Davis, 510U.S. 1315, 1317 (1994). To satisfy narrow tailoring, the Act mustrepresent the least restrictive means to further the government'sasserted data security and propaganda interests, Sable Commc'ns of Cal.,Inc. v. FCC, 492 U.S. 115, 126 (1989), and be neither over- nor under-73.(Page 45 of Total)44

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 46 of 70inclusive, Ark. Writers' Project, Inc. v. Ragland, 481 U.S. 221, 232 (1987).The Act fails in each of these respects.74. The Act opts for a wholesale prohibition on Petitionersoffering online applications in lieu of a multitude of less restrictivemeasures it could have taken instead. As discussed above, Petitionershave been involved in negotiations with CFIUS since 2019 over a packageof measures that would resolve the government's concerns about datasecurity and purported propaganda related to TikTok. The terms of thatnegotiated package are far less restrictive than an outright ban. Thenegotiations have resulted in the draft National Security Agreement,which Tik Tok Inc. is already in the process of voluntarily implementingto the extent it can do so without government action. That initiativeincludes a multi-billion-dollar effort to create a new TikTok U.S.subsidiary devoted to protecting U.S. user data and have U.S.-basedOracle Corporation store protected U.S. TikTok user data in the UnitedStates, run the TikTok recommendation system for U.S. users, andinspect TikTok's source code for security vulnerabilities.75. If executed by the government, the National SecurityAgreement would also give CFIUS a "shut-down option" to suspend45(Page 46 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 47 of 70Tik Tok in the United States in response to specified acts ofnoncompliance. The government has never meaningfully explained whythe National Security Agreement (a far less restrictive alternative to anoutright, total ban) is insufficient to address its stated concerns aboutdata security and propaganda.76. Even if the government's dissatisfaction with the draft.National Security Agreement were valid (despite the government neverexplaining why the agreement that the government itself negotiated isunsatisfactory), the CFIUS process inin which Petitioners haveparticipated in good faith is geared toward finding any number of otherless restrictive alternatives to an outright, total ban. The CFIUS memberagencies could return to working with Petitioners to craft a solution thatis tailored to meet the government's concerns and that is commercially,technologically, and legally feasible. Yet the government has notexplained why the CFIUS process is not a viable alternative.77. There are also a wide range of other less restrictive measuresthat Congress could have enacted. While many of these measures arethemselves unjustified as applied to Petitioners, they nevertheless.illustrate that the Act does not select the least restrictive means to46(Page 47 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 48 of 70further the national security goals that appear to have motivated it. Forexample, Congress could have addressed some members' stated concernabout Tik Tok allegedly "track[ing] the locations of Federal employees andcontractors" 23 by expanding the existing ban on government-owneddevices to cover personal devices of federal employees and contractors.Or Congress could have enacted legislation to regulate TikTok's access tomeasures the Department ofcertain features on users' devicesHomeland Security identified in 2020 as potential mitigations to "reducethe national security risks associated with" TikTok.2478. Of course, Congress could also have decided not to single outa single speech platform (TikTok) and company (ByteDance Ltd.), andinstead pursued any number of industry-wide regulations aimed ataddressing the industry-wide issues of data security and contentintegrity. Congress could have enacted a data protection law governingtransfers of Americans' sensitive data to foreign countries, similar to the23 House Committee Report at 6.24 Cybersecurity and Infrastructure Agency, Critical InfrastructureSecurity and Resilience Note, Appendix B: Department of HomelandSecurity Tik Tok and WeChat Risk Assessment 4 (Sept. 2, 2020).47(Page 48 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 49 of 70strategy President Biden is currently pursuing through executive-theorder. 25 Indeed, Congress did enact such a data-transfer lawsimilarly named "Protecting Americans' Data from Foreign AdversariesAct of 2024" as the very next division of the legislation that containsthe Act. Yet it chose to prohibit only “data broker[s]” from “mak[ing]available personally identifiable sensitive data of a United States.individual to any foreign adversary country or ...any entity that iscontrolled by a foreign adversary." H.R. 815, div. I, § 2(a), 118th Cong.,Pub. L. No. 118-50 (Apr. 24, 2024).79. There are also models for industry-wide regulation thatCongress could have followed from other jurisdictions. For example, theEuropean Union's Digital Services Act requires certain platforms tomake disclosures about their content-moderation policies and to provideregulators and researchers with access to their data so those researcherscan assess if the platforms are systemically promoting or suppressing25 See Exec. Order 14, 117, 89 Fed. Reg. 15421 (Mar. 1, 2024).48(Page 49 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 50 of 70content with particular viewpoints. 26 Congress pursued none of thesealternatives.80. Congress did not even provide Petitioners with the processand fact-finding protections that the Act extends to all other companies-protections which themselves likely fall short of what the Constitutionmandates. Other companies receive prior notice, followed by apresidential determination of (and public report on) the national securitythreat posed by the targeted application, and the submission to Congress.of classified evidence supporting that determination, Sec. 2(g)(3)(B),which then is subject to judicial review based on the actual reasons forthe decision, not post hoc rationalizations.81. Because Congress failed to try any of these less restrictivemeasures, or at a minimum to explain why these alternatives would notaddress the government's apparent concerns, the Act is not narrowlytailored.82. The Act independently fails strict scrutiny because it isboth under- and over-inclusive. The Act is under-inclusive because it26 EU Reg. 2022/2065 arts. 15, 40(4), 42(2).49(Page 50 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024 Page 51 of 70ignores the many ways in which other companies. - both foreign anddomestic can pose the same risks to data security and promotion ofmisinformation supposedly posed by Petitioners. The government"cannot claim" that banning some types of foreign owned applications is"necessary" to prevent espionage and propaganda “while at the sametime" allowing other types of platforms and applications that may "createthe same problem.” Reed, 576 U.S. at 172. Put differently, the Act's“[u]nderinclusiveness raises serious doubts about whether thegovernment is in fact pursuing the interest it invokes, rather thandisfavoring a particular speaker or viewpoint.” Brown v. Ent. MerchantsAss'n, 564 U.S. 786, 802 (2011).83. Most glaringly, the Act applies only to Petitioners and certainother platforms that allow users to generate and view "text, images,videos, real-time communications, or similar content.” Sec. 2(g)(2)(A).The Act's coverage is thus triggered not by whether an application.collects users' data, but whether it shows them “content." Accordingly,there is no necessary relationship between the Act's scope and Congress'sapparent concern with risks to Americans' data security, which could(Page 51 of Total)50

USCA Case #24-1113 Document #2053212Filed: 05/07/2024 Page 52 of 70equally be posed by personal finance, navigation, fitness, or many othertypes of applications.84. The Act also singles out Petitioners by exempting all othercompanies that operate any website or application "whose primarypurpose is to allow users to post product reviews, business reviews, ortravel information and reviews." Sec. 2(g)(2)(B). But the Act does notexplain why such applications, when (i) “foreign adversary controlled”under the Act's broad definition; and (ii) determined by the President tobe a significant national security threat, could not likewise be used tocollect data from Americans such as Americans' location information-or to spread misinformation. Nor does the Act explain why an entirecompany presents no threat simply because it operates a single websiteor application the “primary purpose” of which is posting “product reviews,business reviews, or travel information and reviews." Sec. 2(g)(2)(B).The Act's differential treatment of this favored category of websites andapplications also disregards the fact that there is voluminous content onTik Tok containing product reviews, business reviews, and travelinformation and reviews. Yet TikTok and all ByteDance applications areineligible for this exclusion.51(Page 52 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 53 of 7085. More broadly, the Act ignores the reality that much of thedata collected by Tik Tok is no different in kind from the data routinelycollected by other applications and sources in today's online world,including by American companies like Google, Snap, and Meta. The Actalso ignores that foreign countries, including China, can obtain suchinformation on Americans in other ways such as through open-sourceresearch and hacking operations.86. Likewise, the House Committee Report on an earlier versionof the Act speculates that allowing source code development in China"potentially exposes U.S. users to malicious code, backdoorvulnerabilities, surreptitious surveillance, and other problematicactivities tied to source code development."27 But those supposed risksarise for each of the many American companies that employ individualsin China to develop code. The Act, however, does not seek to regulate,much less prohibit, all online applications offered by companies that haveoffices in China or that otherwise employ Chinese nationals as softwaredevelopers. 2827 House Committee Report at 5.28 See, e.g., Karen Freifeld & Jonathan Stempel, Former Google Engineer52(Page 53 of Total)

USCA Case #24-1113Document #2053212Filed: 05/07/2024Page 54 of 7087.Nor does the Act seek to cut off numerous other ways thatAmericans could be exposed to foreign propaganda. For instance, the Actleaves foreign nationals (and even adversarial governments themselves)free to operate cable television networks in the United States, spreadpropaganda through accounts on other online platforms that enable thesharing of user-generated content, or distribute copies of state-runnewspapers physically or over the Internet (including by softwareapplications) in the United States. 29Indicted for Stealing AI Secrets to Aid Chinese Companies, Reuters(Mar. 6, 2024), https://perma.cc/6LYE-64J6.29 The U.S. government has recognized that foreign government.propaganda is an industry-wide challenge for online platforms. See, e.g.,Nat'l Intel. Council, Declassified Intelligence Community Assessment,Foreign Threats to the 2020 US Federal Elections (Mar. 10, 2021),https://perma.cc/VD3Y-VXSB. YouTube, for example, added disclaimersto certain channels that were reportedly being used to spreaddisinformation on behalf of the Russian government. Paresh Dave &Christopher Bing, Russian Disinformation on YouTube Draws Ads,Lacks Warning Labels - Researchers, Reuters (June 7, 2019),https://perma.cc/2BEJ-VKGW. Like others in the industry, TikTokpublishes transparency reports on attempts by users to use the platformfor government propaganda purposes. See TikTok, Countering InfluenceOperations (last visited May 6, 2024), https://perma.cc/AB39-S8FJ.53(Page 54 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 55 of 7088. The Act is also over-inclusive because it applies to otherByte Dance Ltd.-owned applications that Congress has not shown andcould not possibly prove pose the risks the Act apparently seeks toaddress.-89. At a minimum, the Act fails intermediate scrutiny. Evenif strict scrutiny did not apply, the Act would still fail intermediatescrutiny as a time, place, and manner restriction: the Act prohibitsspeech activity on TikTok at all times, in all places, and in all mannersanywhere across the United States. To pass intermediate scrutiny, a lawmust be "narrowly tailored to serve a significant governmental interest.”McCullen v. Coakley, 573 U.S. 464, 486 (2014). This means that it mustnot "burden substantially more speech than is necessary to further thegovernment's legitimate interests," Turner, 512 U.S. at 661-62, and"leave open ample alternative channels for communication of theinformation," Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293(1984).90. For many of the same reasons the Act cannot satisfy strictscrutiny, it also cannot satisfy intermediate scrutiny:(Page 55 of Total)54

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 56 of 7091.As discussed supra ¶¶67-69, the government has failed toestablish that its apparent data security and propaganda concerns withTik Tok are non-speculative. And as discussed supra ¶¶ 73-81, the Act.burdens substantially more speech than necessary because there aremany less restrictive alternatives Congress could have adopted toaddress any legitimate concerns. The Act also fails intermediate scrutinybecause it “effectively prevents” TikTok Inc. “from reaching [its] intendedaudience" and thus "fails to leave open ample alternative means ofcommunication." Edwards v. City of Coeur d'Alene, 262 F.3d 856, 866(9th Cir. 2001).92. Regardless of the level of scrutiny, the Act violates the FirstAmendment for two additional reasons.93.The Act forecloses an entire medium of expression. First,by banning TikTok in the United States, the Act "foreclose[s] an entiremedium of expression." City of Ladue v. Gilleo, 512 U.S. 43, 56 (1994). A"long line of Supreme Court cases indicates that such laws are almostnever reasonable." Anderson v. City of Hermosa Beach, 621 F.3d 1051,1064-65 (9th Cir. 2010).(Page 56 of Total)55

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 57 of 7094.The Act is constitutionally overbroad. Second, the Act isfacially overbroad. A law is "overbroad if a substantial number of its.applications are unconstitutional, judged in relation to the statute'splainly legitimate sweep." United States v. Stevens, 559 U.S. 460, 473(2010) (citation omitted). Here, for example, the government has nevercontended that all or even most of the content on TikTok (or anyother Byte Dance-owned application) representsmisinformation, or propaganda. Yet the Act shuts down all speech onByteDance-owned applications at all times, in all places, and in allmanners. That is textbook overbreadth. See, e.g., Bd. of Airport Comm'rsv. Jews for Jesus, Inc., 482 U.S. 569, 574–75 (1987).disinformation,Ground 2: Unconstitutional Bill of Attainder95. The Act is an unconstitutional bill of attainder.Article I of the U.S. Constitution prohibits Congress frompassing any bill of attainder. U.S. Const. art. I § 9, cl. 3 ("No Bill ofAttainder or ex post facto Law shall be passed."). A bill of attainder is"legislative punishment, of any form or severity, of specificallydesignated persons or groups." United States v. Brown, 381 U.S. 437, 447(1965). The protection against bills of attainder is “an implementation of56(Page 57 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 58 of 70the separation of powers, a general safeguard against legislative exerciseof the judicial function, or more simply trial by legislature." Id. at 442.-97. By singling out Petitioners for legislative punishment, the Actis an unconstitutional bill of attainder.98. The Act inflicts "pains and penalties" that historically havebeen associated with bills of attainder. See Nixon v. Adm'r of Gen. Servs.,433 U.S. 425, 474 (1977). Historically, common "pains and penalties"included "punitive confiscation of property by the sovereign” and “alegislative enactment barring designated individuals or groups fromparticipation in specified employments or vocations," among others. Id.As described above, the Act confiscates Petitioners' U.S. businesses byforcing ByteDance to shutter them within 270 days or sell on terms thatare not commercially, technologically, or legally feasible. See supra¶¶26-29. For the same reason, the Act bars Petitioners from operatingin their chosen line of business.99. "[V]iewed in terms of the type and severity of burdensimposed" on Petitioners, the Act's treatment of Petitioners cannot"reasonably ... be said to further nonpunitive legislative purposes."Nixon, 433 U.S. at 475–76. The Act transforms Petitioners into a “vilified57(Page 58 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 59 of 70class" by explicitly prohibiting their current and future operations in theUnited States, without qualification or limitation, but does not extendthe same treatment to other similarly situated companies. Foretich v.United States, 351 F.3d 1198, 1224 (D.C. Cir. 2003).100. Moreover, in light of the less restrictive alternatives discussedabove, there is no justification for automatically barring Petitioners'current and future operations in the United States (or those of itssubsidiaries or successors) in perpetuity without providing them ameaningful 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).Indeed, the Act imposes this punishment uniquely on Petitioners withoutthe process, and presidential determination of a significant nationalsecurity threat, that Congress has afforded to everyone else. Expresslysingling out Petitioners for these punitive burdens while at the same timeadopting a statutory standard and decision-making process applicable toevery other entity makes clear that Petitioners are subjected to aprohibited legislatively imposed punishment.101. Moreover, while Petitioners can avoid the Act's prohibitionsonly via a wholesale divestment, all other companies58even those with(Page 59 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024 Page 60 of 70Chinese ownership and determined by the President to present a"significant threat" to U.S. national security ― can avoid prohibitionsimply by operating a website or an application "whose primary purposeis to allow users to post product reviews, business reviews, or travelinformation and reviews." Sec. 2(g)(2)(b).102. Indeed, any other "adversary-controlled" company thatoperates an application exactly like TikTok, but also operates a websitethe primary purpose of which is to post product reviews, is left untouched,leaving a ready path for any company but those affiliated withPetitioners to circumvent the Act's prohibitions altogether. For allpractical purposes, then, the Act applies to just one corporate groupis a "Tik Tok bill," as congressional leaders have described it.30-it103. For all of these reasons, the Act constitutes anunconstitutional bill of attainder.30 Rachel Dobkin, Mike Johnson's Letter Sparks New Flood of RepublicanBacklash, Newsweek (Apr. 17, 2024), https://perma.cc/Z5HD-7UVU(quoting letter from Speaker Johnson referencing the “TikTok_bill”);Senator Chuck Schumer, Majority Leader, to Colleagues (Apr. 5, 2024),https://perma.cc/J7Q4-9PGJ (referencing “TikTok legislation”).59(Page 60 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 61 of 70Ground 3: Violation of Equal Protection104. The Act also violates Petitioners' rights under the equalprotection component of the Fifth Amendment's Due Process Clausebecause it singles Petitioners out for adverse treatment without anyreason for doing so.105. First, the Act deems any application offered by Petitioners tobe a “foreign adversary controlled application" without notice or apresidential determination. Sec. 2(g)(3)(A). By contrast, applicationsoffered by other companies "controlled by a foreign adversary" aredeemed to be "foreign adversary controlled applications" only after notice.and a presidential determination that those companies present"significant threat[s]" to U.S. national security, a determination thatmust be supported by evidence submitted to Congress. Sec. 2(g)(2)(B);see supra 34(d).106. That distinction imposes a dramatically heavier burden onPetitioners' free speech rights without any justification. The Actprecludes the government from burdening the speech rights of anyspeakers other than Petitioners unless and until the President issues apublic report on the specific national security concerns animating the60(Page 61 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 62 of 70President's decision, provides support for that decision, and describes theassets requiring divestiture. Those protections ensure that the Presidentmust, at the very least, provide a detailed national security justificationfor his or her actions before burdening other speakers' speech ajustification that then will provide the basis for judicial review. The Actimposes none of those requirements as a precondition for burdeningPetitioners' speech it levies that burden by unexplained legislativefiat.—107. Second, the Act denies Petitioners the exemption available toany other company that is purportedly “controlled by a foreignadversary." As noted, any application Petitioners offer is ipso factodeemed a "foreign adversary controlled application." By contrast, othercompanies "controlled by a foreign adversary" are exempt from the Act'sdefinition of a "covered company," and thus from the Act's requirements,so long as they offer at least one application with the "primary purpose"of “allow[ing] users to post product reviews, business reviews, or travelinformation and reviews." Sec. 2(g)(2)(B).108. There is no conceivable reason for treating Petitionersdifferently than all other similarly situated companies. Even if Congress61(Page 62 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 63 of 70had valid interests in protecting U.S. users' data and controlling whatcontent may be disseminated through global platforms that would beadvanced through the Act, there is no reason why those concerns wouldsupport a ban on Petitioners' platforms without corresponding bans onother platforms. Nor is there any rational reason why Congress wouldban Petitioners' platforms while allowing any other company "controlledby a foreign adversary" - regardless of the national security threat posedby that company to sidestep the Act's reach by simply offering an-application that “allows users to post product reviews, business reviews,or travel information and reviews," but changing nothing else about thecompany's operations, ownership structure, or other applications.109. By treating Petitioners differently from others similarlysituated, the Act denies Petitioners the equal protection of the law.Ground 4: Unconstitutional Taking110. The Act effects an unlawful taking of private property withoutjust compensation, in violation of the Fifth Amendment's Takings Clause.111. The Takings Clause provides that “private property” shall notbe "taken for public use, without just compensation." U.S. Const.amend. V, cl. 5. The Act does just that by shutting down ByteDance's62(Page 63 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 64 of 70U.S. businesses or, to the extent any qualified divestiture alternative iseven feasible (it is not), compelling ByteDance to sell those businesses.under fire-sale circ*mstances that guarantee inadequate compensation.112. Petitioners have substantial property interests in, andassociated with, their and their affiliates' U.S. operations. These includenot only ByteDance Ltd.'s interest in TikTok Inc. and other U.S.businesses, but also the platforms and applications themselves. SeeKimball Laundry Co. v. United States, 338 U.S. 1, 11–13 (1949) (TakingsClause also protects losses to going-concern value of business).113. If the Act's prohibitions take effect, they will deprivePetitioners of property protected by the Takings Clause. Absent aqualified divestiture, the Act will shutter Petitioners' businesses in theUnited States. And even if a qualified divestiture were feasible (it is not),any sale could be, at best, completed only at an enormous discount to theU.S. businesses' current market value, given the forced sale conditions.See BFP v. Resol. Tr. Corp., 511 U.S. 531, 537 (1994) (“[M]arket value, asit is commonly understood, has no applicability in the forced-sale context;indeed, it is the very antithesis of forced-sale value.").(Page 64 of Total)63

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 65 of 70114. Because the Act compels ByteDance "to relinquish specific,identifiable property" or forfeit "all economically beneficial uses," the Acteffects a per se taking. 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 inflicts a regulatory taking. Even whena law does not compel the physical invasion of property or deprive theproperty of all economically viable use, it still effects a taking "if [it] goestoo far." Penn. Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). Indetermining when a law "goes too far," courts have typically looked to"several factors" identified in Penn Central Transportation Co. v. City ofNew York, 438 U.S. 104, 124 (1978), namely, (a) “[t]he economic impactof the regulation”; (b) “the extent to which the regulation has interferedwith reasonable investment-backed expectations"; and (c) "the characterof the governmental action." The Act inflicts a regulatory taking undereach of these three factors.116. The Act does not compensate Petitioners (let alone providejust compensation) for the dispossession of their U.S. businesses. SeeUnited States v. Miller, 317 U.S. 369, 373 (1943). Prospective injunctive(Page 65 of Total)64

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 66 of 70relief is accordingly warranted. See, e.g., Youngstown Sheet & Tube Co.v. Sawyer, 343 U.S. 579, 585 (1952).Requested Reliefrelief:Petitioners respectfully request that this Court grant the followingA. Issue a declaratory judgment that the Act violates the U.S.Constitution;B. Issue an order enjoining the Attorney General from enforcingthe Act;C. Enter judgment in favor of Petitioners; andD. Grant any further relief that may be appropriate.(Page 66 of Total)65

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 67 of 70DATED: May 7, 2024Andrew J. PincusAvi M. KupferMAYER BROWN LLP1999 K Street, NWWashington, DC 20006Telephone: 202-263-3220Email:apincus@mayerbrown.comakupfer@mayerbrown.comRespectfully submitted,/s/ Alexander A. BerengautAlexander A. BerengautDavid M. ZiontsMegan A. CrowleyCOVINGTON & BURLING LLPOne CityCenter850 Tenth Street, NWWashington, DC 20001Telephone: (202) 662-6000Email: aberengaut@cov.comdzionts@cov.commcrowley@cov.comJohn E. HallAnders LinderotCOVINGTON & BURLING LLPThe New York Times Building620 Eighth AvenueNew York, New York 10018Telephone: (212) 841-1000Email: jhall@cov.comalinderot@cov.comCounsel for Petitioners(Page 67 of Total)66

USCA Case #24-1113Document #2053212Filed: 05/07/2024Page 68 of 70IN THE UNITED STATES COURT OF APPEALSFOR THE DISTRICT OF COLUMBIA CIRCUITTIKTOK INC.,andBYTEDANCE LTD.,V.)Petitioners,No. 24-1113MERRICK B. GARLAND, in his officialcapacity as AttorneyGeneral of the United States,Respondent.CORPORATE DISCLOSURE STATEMENTPetitioners state as follows:ByteDance Ltd. is a privately held corporation incorporated in theCayman Islands. ByteDance Ltd. subsidiaries provide a suite of morethan a dozen products and services that allow people to connect with,create, and consume content on the Internet. ByteDance Ltd. has no(Page 68 of Total)1

USCA Case #24-1113 Document #2053212Filed: 05/07/2024 Page 69 of 70parent company, and no publicly traded company owns 10% or more ofByte Dance Ltd.'s stock.Tik Tok Inc. is a California-incorporated company that provides theTikTok platform in the United States. TikTok Inc. is a wholly ownedsubsidiary of TikTok LLC, which is a wholly owned subsidiary of TikTokLtd. TikTok Ltd. is a wholly owned subsidiary of ByteDance Ltd. TikTokInc. has no other parent company, and no publicly held corporation owns10% or more of its stock.(Page 69 of Total)2/s/Alexander A. BerengautAlexander A. BerengautCounsel for Petitioners

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 70 of 70CERTIFICATE OF SERVICEI hereby certify that on this 7th day of May, I caused copies of theforegoing Petition for Review and Corporate Disclosure Statement to beserved upon the following recipients.By certified mail, postage prepaid:Merrick B. GarlandAttorney General of the United StatesU.S. Department of Justice950 Pennsylvania Avenue, NWWashington, DC 20530By hand delivery:Matthew M. GravesUnited States Attorney601 D Street, NWWashington, DC 20579/s/ Alexander A. BerengautAlexander A. BerengautCounsel for Petitioners(Page 70 of Total)

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 1 of 7(Page 71 of Total)EXHIBIT A

USCA Case #24-1113Document #2053212Filed: 05/07/2024Page 2 of 7(Page 72 of Total)H. R. 815-61Fusion Development Strategy programs of the People's Republicof China, including the following:(1) A brief summary of each such identified field and itsrelevance to the military power and national security of thePeople's Republic of China.(2) The implications for the national security of the UnitedStates as a result of the leadership or dominance by the People'sRepublic of China in each such identified field and associatedsupply chains.(3) The identification of at least 10 entities domiciled in,controlled by, or directed by the People's Republic of China(including any subsidiaries of such entity), involved in eachsuch identified field, and an assessment of, with respect toeach such entity, the following:(A) Whether the entity has procured components fromany known United States suppliers.(B) Whether any United States technology importedby the entity is controlled under United States regulations.(C) Whether United States capital is invested in theentity, either through known direct investment or passiveinvestment flows.(D) Whether the entity has any connection to the Peo-ple's Liberation Army, the Military-Civil Fusion programof the People's Republic of China, or any other state-spon-sored initiatives of the People's Republic of China to sup-port the development of national champions.(c) APPROPRIATE CONGRESSIONAL COMMITTEES DEFINED.-Inthis section, the term "appropriate congressional committees"means-(1) the Committee on Foreign Affairs of the House of Rep-resentatives;(2) the Committee on Armed Services of the House ofRepresentatives;(3) the Committee on Foreign Relations of the Senate;and(4) the Committee on Armed Services of the Senate.DIVISION H-PROTECTING AMERICANSFROM FOREIGN ADVERSARY CON-TROLLED APPLICATIONS ACTSEC. 1. SHORT TITLE.This division may be cited as the "Protecting Americans fromForeign Adversary Controlled Applications Act”.SEC. 2.PROHIBITION OF FOREIGNAPPLICATIONS.ADVERSARYCONTROLLED(a) IN GENERAL.—(1) PROHIBITION OF FOREIGN ADVERSARY CONTROLLEDAPPLICATIONS.-It shall be unlawful for an entity to distribute,maintain, or update (or enable the distribution, maintenance,or updating of) a foreign adversary controlled application bycarrying out, within the land or maritime borders of the UnitedStates, any of the following:

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 3 of 7(Page 73 of Total)H. R. 815-62(A) Providing services to distribute, maintain, orupdate such foreign adversary controlled application(including any source code of such application) by meansof a marketplace (including an online mobile applicationstore) through which users within the land or maritimeborders of the United States may access, maintain, orupdate such application.(B) Providing internet hosting services to enable thedistribution, maintenance, or updating of such foreignadversary controlled application for users within the landor maritime borders of the United States.(2) APPLICABILITY.-Subject to paragraph (3), this sub-section shall apply―(A) in the case of an application that satisfies thedefinition of a foreign adversary controlled applicationpursuant to subsection (g)(3)(A), beginning on the datethat is 270 days after the date of the enactment of thisdivision; and(B) in the case of an application that satisfies thedefinition of a foreign adversary controlled applicationpursuant to subsection (g)(3)(B), beginning on the datethat is 270 days after the date of the relevant determinationof the President under such subsection.(3) EXTENSION. With respect to a foreign adversary con-trolled application, the President may grant a 1-time extensionof not more than 90 days with respect to the date on whichthis subsection would otherwise apply to such applicationpursuant to paragraph (2), if the President certifies to Congressthat-(A) a path to executing a qualified divestiture hasbeen identified with respect to such application;(B) evidence of significant progress toward executingsuch qualified divestiture has been produced with respectto such application; and(C) there are in place the relevant binding legal agree-ments to enable execution of such qualified divestitureduring the period of such extension.(b) DATA AND INFORMATION PORTABILITY TO ALTERNATIVEAPPLICATIONS.-Before the date on which a prohibition under sub-section (a) applies to a foreign adversary controlled application,the entity that owns or controls such application shall provide,upon request by a user of such application within the land ormaritime borders of United States, to such user all the availabledata related to the account of such user with respect to suchapplication. Such data shall be provided in a machine readableformat and shall include any data maintained by such applicationwith respect to the account of such user, including content (includingposts, photos, and videos) and all other account information.(c) EXEMPTIONS.—(1) EXEMPTIONS FOR QUALIFIED DIVESTITURES.-Subsection(a)—(A) does not apply to a foreign adversary controlledapplication with respect to which a qualified divestitureis executed before the date on which a prohibition undersubsection (a) would begin to apply to such application;and

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 4 of 7(Page 74 of Total)H. R. 815-63(B) shall cease to apply in the case of a foreignadversary controlled application with respect to which aqualified divestiture is executed after the date on whicha prohibition under subsection (a) applies to such applica-tion.(2) EXEMPTIONS FOR CERTAIN NECESSARY SERVICES.-Sub-sections (a) and (b) do not apply to services provided withrespect to a foreign adversary controlled application that arenecessary for an entity to attain compliance with such sub-sections.(d) ENFORCEMENT.—(1) CIVIL PENALTIES.―(A) FOREIGN ADVERSARY CONTROLLED APPLICATION VIO-LATIONS. An entity that violates subsection (a) shall besubject to pay a civil penalty in an amount not to exceedthe amount that results from multiplying $5,000 by thenumber of users within the land or maritime borders ofthe United States determined to have accessed, maintained,or updated a foreign adversary controlled application asa result of such violation.(B) DATA AND INFORMATION VIOLATIONS.-An entitythat violates subsection (b) shall be subject to pay a civilpenalty in an amount not to exceed the amount that resultsfrom multiplying $500 by the number of users within theland or maritime borders of the United States affectedby such violation.(2) ACTIONS BY ATTORNEY GENERAL.-The Attorney Gen-eral-(A) shall conduct investigations related to potentialviolations of subsection (a) or (b), and, if such an investiga-tion results in a determination that a violation hasoccurred, the Attorney General shall pursue enforcementunder paragraph (1); and(B) may bring an action in an appropriate districtcourt of the United States for appropriate relief, includingcivil penalties under paragraph (1) or declaratory andinjunctive relief.(e) SEVERABILITY.―(1) IN GENERAL.-If any provision of this section or theapplication of this section to any person or circ*mstance isheld invalid, the invalidity shall not affect the other provisionsor applications of this section that can be given effect withoutthe invalid provision or application.(2) SUBSEQUENT DETERMINATIONS.-If the application ofany provision of this section is held invalid with respect toa foreign adversary controlled application that satisfies thedefinition of such term pursuant to subsection (g)(3)(A), suchinvalidity shall not affect or preclude the application of thesame provision of this section to such foreign adversary con-trolled application by means of a subsequent determinationpursuant to subsection (g)(3)(B).(f) RULE OF CONSTRUCTION.-Nothing in this division may beconstrued―(1) to authorize the Attorney General to pursue enforce-ment, under this section, other than enforcement of subsection(a) or (b);

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 5 of 7(Page 75 of Total)H. R. 815-64(2) to authorize the Attorney General to pursue enforce-ment, under this section, against an individual user of a foreignadversary controlled application; or(3) except as expressly provided herein, to alter or affectany other authority provided by or established under anotherprovision of Federal law.(g) DEFINITIONS.-In this section:(1) CONTROLLED BY A FOREIGN ADVERSARY.-The term "con-trolled by a foreign adversary" means, with respect to a coveredcompany or other entity, that such company or other entityis-(A) a foreign person that is domiciled in, isheadquartered in, has its principal place of business in,or is organized under the laws of a foreign adversarycountry;(B) an entity with respect to which a foreign personor combination of foreign persons described in subpara-graph (A) directly or indirectly own at least a 20 percentstake; or(C) a person subject to the direction or control of aforeign person or entity described in subparagraph (A)or (B).(2) COVERED COMPANY.—(A) IN GENERAL.—The term "covered company" meansan entity that operates, directly or indirectly (includingthrough a parent company, subsidiary, or affiliate), awebsite, desktop application, mobile application, or aug-mented or immersive technology application that—(i) permits a user to create an account or profileto generate, share, and view text, images, videos, real-time communications, or similar content;(ii) has more than 1,000,000 monthly active userswith respect to at least 2 of the 3 months precedingthe date on which a relevant determination of thePresident is made pursuant to paragraph (3)(B);(iii) enables 1 or more users to generate or dis-tribute content that can be viewed by other users ofthe website, desktop application, mobile application,or augmented or immersive technology application; and(iv) enables 1 or more users to view content gen-erated by other users of the website, desktop applica-tion, mobile application, or augmented or immersivetechnology application.(B) EXCLUSION.—The term “covered company” does notinclude an entity that operates a website, desktop applica-tion, mobile application, or augmented or immersive tech-nology application whose primary purpose is to allow usersto post product reviews, business reviews, or travelinformation and reviews.a(3) FOREIGN ADVERSARY CONTROLLED APPLICATION.―Theterm "foreign adversary controlled application" meanswebsite, desktop application, mobile application, or augmentedor immersive technology application that is operated, directlyor indirectly (including through a parent company, subsidiary,or affiliate), by—(A) any of(i) ByteDance, Ltd.;

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 6 of 7(Page 76 of Total)(ii) TikTok;H. R. 815-65(iii) a subsidiary of or a successor to an entityidentified in clause (i) or (ii) that is controlled bya foreign adversary; or(iv) an entity owned or controlled, directly orindirectly, by an entity identified in clause (i), (ii),or (iii); or(B) a covered company that-(i) is controlled by a foreign adversary; and(ii) that is determined by the President to presenta significant threat to the national security of theUnited States following the issuance of(I) a public notice proposing such determina-tion; and(II) a public report to Congress, submitted notless than 30 days before such determination,describing the specific national security concerninvolved and containing a classified annex anda description of what assets would need to bedivested to execute a qualified divestiture.(4) FOREIGN ADVERSARY COUNTRY.-The term “foreignadversary country" means a country specified in section4872(d)(2) of title 10, United States Code.(5) INTERNET HOSTING SERVICE.―The term "internethosting service" means a service through which storage andcomputing resources are provided to an individual or organiza-tion for the accommodation and maintenance of 1 or morewebsites or online services, and which may include file hosting,domain name server hosting, cloud hosting, and virtual privateserver hosting.(6) QUALIFIED DIVESTITURE.—The term "qualified divesti-ture" means a divestiture or similar transaction that-(A) the President determines, through an interagencyprocess, would result in the relevant foreign adversarycontrolled application no longer being controlled by a for-eign adversary; and(B) the President determines, through an interagencyprocess, precludes the establishment or maintenance ofany operational relationship between the United Statesoperations of the relevant foreign adversary controlledapplication and any formerly affiliated entities that arecontrolled by a foreign adversary, including any cooperationwith respect to the operation of a content recommendationalgorithm or an agreement with respect to data sharing.(7) SOURCE CODE.-The term "source code" means the com-bination of text and other characters comprising the content,both viewable and nonviewable, of a software application,including any publishing language, programming language, pro-tocol, or functional content, as well as any successor languagesor protocols.(8) UNITED STATES.-The term "United States" includesthe territories of the United States.SEC. 3. JUDICIAL REVIEW.(a) RIGHT OF ACTION.-A petition for review challenging thisdivision or any action, finding, or determination under this division

USCA Case #24-1113 Document #2053212Filed: 05/07/2024Page 7 of 7(Page 77 of Total)H. R. 815-66may be filed only in the United States Court of Appeals for theDistrict of Columbia Circuit.(b) EXCLUSIVE JURISDICTION.-The United States Court ofAppeals for the District of Columbia Circuit shall have exclusivejurisdiction over any challenge to this division or any action, finding,or determination under this division.(c) STATUTE OF LIMITATIONS.-A challenge may only bebrought―(1) in the case of a challenge to this division, not laterthan 165 days after the date of the enactment of this division;and(2) in the case of a challenge to any action, finding, ordetermination under this division, not later than 90 days afterthe date of such action, finding, or determination.DIVISION I-PROTECTING AMERICANS'DATA FROM FOREIGN ADVERSARIESACT OF 2024SEC. 1. SHORT TITLE.This division may be cited as the "Protecting Americans' Datafrom Foreign Adversaries Act of 2024".SEC. 2. PROHIBITION ON TRANSFER OF PERSONALLY IDENTIFIABLESENSITIVE DATA OF UNITED STATES INDIVIDUALS TO FOR-EIGN ADVERSARIES.(a) PROHIBITION.-It shall be unlawful for a data broker tosell, license, rent, trade, transfer, release, disclose, provide accessto, or otherwise make available personally identifiable sensitivedata of a United States individual to-(1) any foreign adversary country; or(2) any entity that is controlled by a foreign adversary.(b) ENFORCEMENT BY FEDERAL TRADE COMMISSION.―(1) UNFAIR OR DECEPTIVE ACTS OR PRACTICES.-A violationof this section shall be treated as a violation of a rule definingan unfair or a deceptive act or practice under section 18(a)(1)(B)of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)).(2) POWERS OF COMMISSION.―(A) IN GENERAL.-The Commission shall enforce thissection in the same manner, by the same means, andwith the same jurisdiction, powers, and duties as thoughall applicable terms and provisions of the Federal TradeCommission Act (15 U.S.Č. 41 et seq.) were incorporatedinto and made a part of this section.(B) PRIVILEGES AND IMMUNITIES.-Any person who vio-lates this section shall be subject to the penalties andentitled to the privileges and immunities provided in theFederal Trade Commission Act.(3) AUTHORITY PRESERVED.-Nothing in this section maybe construed to limit the authority of the Commission underany other provision of law.(c) DEFINITIONS.-In this section:(1) COMMISSION.-The term "Commission" means the Fed-eral Trade Commission.