August 5, 2024
TikTok says secret evidence is bullshit. And if you’re going to move forward with the TikTok ban…you need to justify – in federal court and to the American people why their constitutional rights are being trampled.
That’s basically what TikTok just said in brand new filing posted today in the Washington DC federal appeals court. This 51-page brief is in response to the looming TikTok ban and the US government filing I told you all about last week. You remember – that massive document was supposed to explain why congress passed the Protecting Americans from Foreign Adversary Controlled Applications Act that forces Bytedance to sell US TikTok or face a ban on January 19th. But instead of disclosing why the ban is necessary the Department of Justice brief looked like this. About 20 pages –were completely or partially redacted. It appears these redactions include possibly some kind of possible classified information.
But here’s the thing – according to this new TikTok filing – we the public aren’t the only ones in the dark about what was actually behind those redactions. TikTok — the petitioner in this case – says the official copy of the brief they received *also* has the redactions – so they can’t figure out what they’re defending against – because they don’t know what evidence the government is using to justify the ban. And the government says they want to keep filing more evidence in secret! TikTok writes… “the government has substantially complicated this case by choosing to hide large parts of its case from petitioners and the public. The court should not allow the government to impose irreparable harm to the first amendment rights of petitioners and 170 million Americans while frustrating the court’s ability to perform meaningful review of its unprecedented actions.”
Not only is keeping evidence secret from the other side problematic in all court – TikTok argues that it’s possible the stuff the US government is redacting and wanting to file in secret is also wrong. Their brief says “the government’s extensive redactions are even more troubling given its recent decision to un-redact a formerly classified paragraph from its brief – which turns out to contain only quotes form the industry publication Buzzfeed and petitioner’s own filings in this case.”
TikTok argues – the US appeals court should simply rule the Protecting Americans from Foreign Adversary Controlled Applications Act is unconstitutional on its face for several reasons laid out in other court filings I’ve reported on in several videos. But if the court chooses not to do that and instead agrees to entertain this redacted national security secret evidence – that TikTok doesn’t have access to — the court should appoint a special master – a third party unrelated federal judge – to go through this alleged classified evidence and rule on how it should be handled in this case.
Now that takes a lot of time – so TikTok is saying – if the appeals court decides to go the special master route – the court should grant an injunction to pause the TikTok ban from taking effect while this case plays out.
We will hear more about this during oral arguments in September.
Read the TikTok brief filed today here.
