In a groundbreaking legal filing on Thursday, TikTok intensified its criticism of the Biden administration over a law that could potentially ban the popular app from the United States. The social media platform argued that if it is forced to find a new owner, US TikTok users could be isolated on an "island" of content, cut off from the rest of the world.

This filing also revealed, for the first time, the text of a draft agreement between TikTok and the US government. The company claimed that this agreement would have addressed national security concerns associated with the app. However, TikTok alleged that the agreement was discarded in favor of legislation that it believes violates the First Amendment.

The outcome of this pivotal case could determine not only the future of an app used by 170 million Americans, but also the interpretation of the First Amendment in relation to online speech. The Justice Department declined to comment on the matter.

TikTok has consistently argued that its Chinese parent company, ByteDance, cannot divest from the app within the January 2025 deadline set by the law signed by President Joe Biden in April. The company states that even if divestiture were feasible, TikTok in the US would be severely diminished, lacking the innovative technology that tailors content to each user. Moreover, TikTok claims that the ban would prevent Americans from exchanging views with the global TikTok community.

According to TikTok's filing, the law being challenged by the company prohibits data-sharing agreements that would enable the display of international TikTok content to US users. The company fears that this restriction would cripple its ability to provide a diverse range of content to its American user base.

Parallel to TikTok's legal filing, a group of TikTok content creators, consisting of a football coach, a sexual assault survivor advocate, and a US Air Force veteran, filed a related legal brief. They argued that the challenged law would infringe upon their right to express themselves and receive others' speech, as protected by the First Amendment.

TikTok's focus on the previously undisclosed draft agreement with the Committee on Foreign Investment in the United States (CFIUS) could be crucial to its case. TikTok contends that the existence of this proposed deal demonstrates a less restrictive alternative that could have satisfied the government's national security concerns without resorting to divestiture or a ban. The question of whether the Biden administration overlooked this option might play a role in assessing the constitutionality of the law.

TikTok claimed that despite years of negotiations and numerous meetings and phone calls with US government officials, the draft agreement was never signed. TikTok further alleges that CFIUS demanded divestment without providing a clear explanation as to why the proposed agreement was insufficient. TikTok's requests for meetings with senior US officials reportedly received no meaningful responses.

For years, US officials have voiced concerns about the potential for the Chinese government to access TikTok's user data through its ties to ByteDance. Former President Donald Trump attempted to ban TikTok through executive action, but legal challenges thwarted this effort. Interestingly, after President Biden signed the legislation in April, Trump reversed his stance, asserting that a ban would only benefit TikTok's competitor, Meta.

While independent cybersecurity experts acknowledge the theoretical risk of China accessing TikTok user data, no evidence has been publicly presented to support these claims. US officials, however, warn that such access could be used for propaganda purposes or to identify intelligence targets. TikTok has consistently denied giving the Chinese government access to its data and criticized classified congressional briefings as part of a flawed and secretive legislative process.

In the attached appendix to its legal brief, TikTok included the entire 103-page draft agreement, which outlined its plan, known as Project Texas, to segregate US user data from its global operation. The draft also included a provision stipulating that the US government could temporarily halt or shut down TikTok if the company failed to meet certain requirements, such as providing access to its source code.

TikTok revealed that it has already invested $2 billion in voluntarily implementing Project Texas.

Adding weight to TikTok's argument, a signed declaration from Christopher Simkins, a third-party expert and former CFIUS official, emphasized that the proposed agreement was as robust as any they had seen in their two decades of experience. If implemented, Simkins predicts that TikTok's national security risks "would be reduced to a LOW level."