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TikTok Files Lawsuit Against Possible Sale, Shutdown

Older influencers want the popular but controversial app to continue to be available

spinner image tiktok user patriotic kenny and other activists demonstrate to support the social media platform in washington dc
Kenny Jary, then 81, of St. Paul, Minnesota, is front and center at a protest and press conference of TikTok influencers as Congress convened a hearing March 23, 2023, on the future of the social media platform.

Tik Tok and its Chinese parent company ByteDance are fighting against a new law that requires one of the country’s most popular apps to be sold or shut down within a year.

Citing free speech protections, they’re suing the U.S. government to block the ban, which garnered widespread bipartisan support in the House and Senate. President Joe Biden signed the bill April 24.

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“If Congress can do this, it can circumvent the First Amendment by invoking national security and ordering the publisher of any individual newspaper or website to sell to avoid being shut down,” ByteDance said in court documents. “And for TikTok, any such divestiture would disconnect Americans from the rest of the global community on a platform devoted to shared content — an outcome fundamentally at odds with the Constitution’s commitment to both free speech and individual liberty.”

Older TikTokkers, including Kenny Jary, are hoping for a reprieve. The 82-year-old TikTok creator from St. Paul, Minnesota, has amassed 2.7 million followers on the wildly popular but politically radioactive short-form video-sharing social platform.

When Jary’s scooter broke down, TikTok users rallied around him and donated money to replace it. This led to the establishment of the nonprofit Patriotic Kenny Foundation, which gives away mobility scooters to veterans for free. Jary’s TikTok handle is @patriotickenny.

“Taking away TikTok would completely change Kenny’s life,” says neighbor Amanda Kline, 39, who records, edits and posts Jary’s videos. “His health was declining, he was really isolated and alone, and through TikTok he was able to get mobility, freedom … connect with the world and build a community and love.”

Dan Salinger (@dsalnorcal), 56, who posts videos about caring for Ed, his 92-year-old dad with advanced dementia, is also concerned about a potential shutdown that could happen if the app isn’t sold to a U.S. company or Chinese interests decide they don’t want the secrets of the app’s algorithm to leave their country. It would leave a “terrible void for literally tens of millions of Americans” who have become dependent on TikTok to find companionship, friends, support and unity.

TikTok still among the most downloaded apps

TikTok’s global reach is massive. Dismantling it, were that to happen, would be an enormous lift. More than 170 million active users are on TikTok monthly in the U.S alone, with more than one billion around the world.

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This week it is the sixth most popular app in the Apple App Store behind another with Chinese roots, bargain-shopping appTemu. Meta’s Threads, Google, artificial intelligence app ChatGPT, and WhatsApp Messenger are also more popular.

It’s the second most popular app in Google Play after Temu.

“I do believe they’re going to find a way to avoid banning an app that is used by half the country,” Salinger says. The U.S. population as of midyear 2022 was 333.3 million, according to the Census Bureau, but nearly 19 million were younger than 5.

Yet the clock may be ticking on TikTok in the United States. ByteDance was given about nine months to sell though the period could be lengthened to a year.

“What we’re after is — it’s not a ban — it’s a forced separation,” Rep. Mike Gallagher (R-Wis.), chair of the House Select Committee on China, told NPR.

U.S. officials worried about national security

Since the Trump administration, TikTok has been in the U.S. government’s crosshairs because of national security concerns surrounding the ties of ByteDance to China’s authoritarian government. But candidate Donald Trump decided to oppose the House bill.

A year ago, members of Congress from both parties grilled TikTok’s Singapore-born chief executive Shou Zi Chew on Capitol Hill. TikTok began in China, ByteDance is headquartered in Beijing and a representative of China’s Communist Party has one of three seats on the board of a ByteDance subsidiary that’s the Chinese version of TikTok.

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Chew didn’t convince American lawmakers that all U.S. user data will eventually be stored in the United States on servers U.S.-based Oracle controls and thus be shielded from unauthorized foreign access. He conceded that ByteDance employees may currently have access to some U.S. data.

Nearly two months after the March 2023 congressional hearings, Montana became the first U.S. state to ban TikTok from app stores in the state. But a federal judge blocked the ban in November.

Others see a First Amendment issue

“Montana’s TikTok ban is laughably unconstitutional, but it’s also comically difficult to enforce,” Evan Greer, director of the Boston advocacy group Fight For the Future, said at the time the state took action. “The ban serves no purpose beyond political posturing. It does less than nothing to address valid concerns with TikTok’s surveillance practices.”

The American Civil Liberties Union of Montana also opposed the ban, citing free speech concerns.

For political and other reasons, any forced sale or divestiture of TikTok won’t be simple, though at least one potential U.S. buyer, former Treasury Secretary Steven Mnuchin, has emerged. He announced on CNBC in March that he is attempting to put together an investor group to buy the subsidiary.

“I think the legislation should pass, and I think it should be sold,” Mnuchin said then.

TikTok's lawsuit suggests a protracted legal battle that could eventually wind up in the U.S. Supreme Court. 

“This legislation is unconstitutional and a real blow to the free expression rights of 170 million people who create and engage with content on TikTok,” Kate Ruane, director of the Washington-based Center for Democracy & Technology’s Free Expression Project said in a statement. “Congress shouldn’t be in the business of banning platforms. They should be working to enact comprehensive privacy legislation that protects our private data no matter where we choose to engage online.”

As leverage against the new law, Bejing could block the sale or export of TikTok’s algorithms, the underlying technology behind the app’s addictive nature, at least for many users.

Worry about TikTok’s China ties lessens

The appetite for supporting a government ban of TikTok is declining, according to a Pew Research Center survey conducted in the fall. Just 38 percent of those surveyed were in favor of the ban, compared to 50 percent in March 2023.

Thirty-nine percent of respondents age 50 to 64 supported the ban, down from 54 percent. And 49 percent of adults 65 and older also supported the ban, down from 71 percent previously.

As recently as a year ago, more than 7 in 10 expressed concerns over TikTok’s Chinese ownership, according to a Washington Post poll.

Early on, TikTok was considered a platform for kids and teens to record funky dance videos. But people flock to it now for other reasons: to learn, be entertained, find recipes, socialize and promote causes and businesses. Celebrities along with large and small enterprises, including AARP, have embraced it.

To be sure, TikTok’s user base still skews young. Most users are in their 20s or younger. But older adults and so-called grandfluencers are well represented.

@themuthership Am I worried about a TikTok ban? The short answer is no, but here’s how to be prepared for the anything that might happen to your social media account without warning. Listen to the full 15-min episode for more thoughts on all of this 😳 #TikTokBan #SaveTikTok #TikTokTutorials #TikTokTeacher #TheMuthership ♬ original sound - themuthership tiktok teacher💙

Creators say TikTok’s formula is a winner

The prospect that TikTok could shut down in the United States is leaving some older adults scrambling for an alternative. Older TikTok creators that AARP interviewed said TikTok would be a hard act to follow.

TikTok doesn’t pay Helen Polise, 63, directly. She has nearly 1 million followers under her @themuthership handle. But she makes money charging for videos that teach people the nuts and bolts of producing videos on TikTok and other apps.

“TikTok has provided opportunities to creators to find new audiences, small business owners to reach new customer bases,” she says. “And the app has provided immense opportunities for people of all ages, backgrounds, income levels to find community and have their voices be heard in a way that no other social media platform has been able to achieve.”

But she’s already hedging her bets. Beyond TikTok, she posts on YouTube, Instagram and a small emerging alternative called Clapper.

“I haven’t put all of my eggs in one basket,” she says. “I always realized that my TikTok audience was only my audience … as long as TikTok was around. … I’ve always [embraced] whatever the newest fad was.”

A Boston-area public relations and crisis management professional, Molly McPherson, 54, also has spread her social media presence across all the major outlets.

spinner image michael jamin in a gray t-shirt and brown blazer
Michael Jamin of Los Angeles says he wants to diversify platforms but has more than 400,000 followers on TikTok.

TikTok doesn’t pay her directly either, but she has generated a lot of business from clients who have found her videos on the app. She posts on TikTok at @mollybmcpherson about five times a week and has nearly a half million followers.

TikTok is “the only platform that has found the sweet spot between video, engagement and time viewing,” she says. “It’s disappointing to see my go-to social media app under threat.”

McPherson doesn’t see Facebook as a viable alternative: “That ship has sailed.” She noted last year that “I have 17,000 followers on Twitter [now 19,000 on X]. I can get 17,000 in a week on TikTok.”

McPherson has a regular dialogue with fellow creators of a similar age about ways “to drive people to newsletters and our other sites to support our business, just in case TikTok goes away.”

One of those creators is Los Angeles television writer Michael Jamin (@michaeljaminwriter), 53. He posts writing and screenwriting tips on TikTok to build an audience for a book he’s writing and a tour he’s preparing.

Jamin has written for a long list of shows, including Beavis & Butthead and King of the Hill. He has around 445,000 TikTok followers and says more than 7 million people saw one of his posts.

Jamin says he doesn’t want to be at the mercy of any single platform. But TikTok’s demise “would definitely hurt me … and be a shame.”

He isn’t certain where he or other creators might gravitate to next and admits it could be an outlet that doesn’t exist yet. What happens to TikTok has become a trending subject for the site’s creators, he says.

“You got to go wherever the fish are,” Jamin says. “Wherever people start flooding to, that’s where you’ll go.” 

This story, originally published March 24, 2023, has been updated with information on President Biden signing a bill banning TikTok into law as well as TikTok’s suit to block that law.

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