TikTok revealed it offered the US government the authority to shut down the platform in an attempt to alleviate lawmakers’ concerns about data protection and national security.
The disclosure of the “kill switch” offer, made in 2022, comes as TikTok begins its legal battle against legislation that will ban the app in the US unless its Chinese parent company, ByteDance, sells it. The law was introduced over fears that TikTok might share US user data with the Chinese government, allegations that TikTok and ByteDance have consistently denied.
TikTok and ByteDance are urging the courts to invalidate the legislation. “This law is a radical departure from this country’s tradition of championing an open Internet and sets a dangerous precedent, allowing the political branches to target a disfavored speech platform and force it to sell or be shut down,” they argued in their legal submission.
They also claimed that the US government refused to engage in serious settlement talks after 2022, highlighting the “kill switch” offer as evidence of their willingness to comply. TikTok says the mechanism would have given the government the “explicit authority to suspend the platform in the United States at the US government’s sole discretion” if it did not adhere to certain rules.
A draft “National Security Agreement,” proposed by TikTok in August 2022, would have required the company to follow rules such as adequately funding its data protection units and ensuring ByteDance did not have access to US users’ data. The “kill switch” could have been triggered by the government if this agreement was breached, according to TikTok.
In a letter first reported by the Washington Post, addressed to the US Department of Justice, TikTok’s lawyer alleges that the government “ceased any substantive negotiations” after the new rules were proposed. The letter, dated 1 April 2024, claims the US government ignored requests to meet for further discussions and did not respond to TikTok’s invitation to “visit and inspect its Dedicated Transparency Center in Maryland.”
The US Court of Appeals for the District of Columbia will hear oral arguments on lawsuits filed by TikTok, ByteDance, and TikTok users in September. Legislation signed in April by President Joe Biden gives ByteDance until January next year to divest TikTok’s US assets or face a ban. The law was born out of concerns that data belonging to the platform’s 170 million US users could be handed over to the Chinese government.
TikTok denies sharing foreign users’ data with China and has labelled the legislation an “unconstitutional ban” and an affront to the US right to free speech. The company insists that US data does not leave the country and is overseen by American company Oracle, in a deal known as Project Texas. However, a Wall Street Journal investigation in January 2024 found that some data was still being shared between TikTok in the US and ByteDance in China.
In May, a US government official told the Washington Post that “the solution proposed by the parties at the time would be insufficient to address the serious national security risks presented.” They added, “While we have consistently engaged with the company about our concerns and potential solutions, it became clear that divestment from its foreign ownership was and remains necessary.”
