TikTok Faces Tough Questions from Court over Challenge to US Law

A view of the E. Barrett Prettyman US Court House in Washington, DC on September 16, 2024. (AFP)
A view of the E. Barrett Prettyman US Court House in Washington, DC on September 16, 2024. (AFP)
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TikTok Faces Tough Questions from Court over Challenge to US Law

A view of the E. Barrett Prettyman US Court House in Washington, DC on September 16, 2024. (AFP)
A view of the E. Barrett Prettyman US Court House in Washington, DC on September 16, 2024. (AFP)

A lawyer for TikTok and Chinese parent company ByteDance faced tough questions on Monday as a US appeals court heard arguments in their lawsuit seeking to block a law that could ban the short video app used by 170 million Americans as soon as Jan. 19.

A three-judge panel of the US Court of Appeals for the District of Columbia began hearing arguments in the suit filed by TikTok and ByteDance in May seeking an injunction barring the law from taking effect.

The judges questioned TikTok's outside lawyer Andrew Pincus, who argued that the US government had not demonstrated that TikTok poses national security risks and that the law violates the US Constitution on a number of grounds including running afoul of First Amendment free speech protections.

"The law before this court is unprecedented, and its effect would be staggering," Pincus told the judges, saying "for the first time in history, Congress has expressly targeted a specific US speaker, banning its speech and the speech of 170 million Americans."

The law gives ByteDance until Jan. 19 to sell or divest TikTok's US assets or face a ban in the United States. Driven by worries among American lawmakers that China could access data on Americans or spy on them with the app, the US Congress passed the measure with overwhelming support and President Joe Biden signed it into law in April.

The law prohibits app stores like Apple and Alphabet's Google from offering TikTok and bars internet hosting services from supporting TikTok unless ByteDance divests TikTok by the deadline. Under the law, Biden could extend the deadline by three months if he certifies ByteDance is making significant progress toward a sale.

Judges Sri Srinivasan, Neomi Rao and Douglas Ginsburg were hearing the arguments.

The case is playing out during the final weeks of the US presidential campaign. Republican presidential candidate Donald Trump and Vice President Kamala Harris, his Democratic rival, are active on TikTok, seeking to court younger voters.

The Justice Department has said TikTok, under Chinese ownership, poses a serious national security threat because of its access to vast amounts of personal data on Americans, asserting China can covertly manipulate information that Americans consume via TikTok.

ByteDance has said divestiture is "not possible technologically, commercially or legally."

TikTok and the Justice Department have asked for a ruling by Dec. 6, which could allow the US Supreme Court to consider any appeal before a ban takes effect.

The White House has said it wants to see Chinese-based ownership ended on national security grounds, but not a ban on TikTok. Trump, who unsuccessfully tried to ban TikTok in 2020, has said if elected in November he would not allow TikTok to be banned.



Latest US Strike on China's Chips Hits Semiconductor Toolmakers

Flags of China and US are displayed on a printed circuit board with semiconductor chips, in this illustration picture taken February 17, 2023. REUTERS/Florence Lo/Illustration/File Photo
Flags of China and US are displayed on a printed circuit board with semiconductor chips, in this illustration picture taken February 17, 2023. REUTERS/Florence Lo/Illustration/File Photo
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Latest US Strike on China's Chips Hits Semiconductor Toolmakers

Flags of China and US are displayed on a printed circuit board with semiconductor chips, in this illustration picture taken February 17, 2023. REUTERS/Florence Lo/Illustration/File Photo
Flags of China and US are displayed on a printed circuit board with semiconductor chips, in this illustration picture taken February 17, 2023. REUTERS/Florence Lo/Illustration/File Photo

The United States on Monday launched its third crackdown in three years on China's semiconductor industry, curbing exports to 140 companies including chip equipment maker Naura Technology Group, among other moves.

The effort to hobble Beijing's chipmaking ambitions also hits Chinese chip toolmakers Piotech and SiCarrier Technology with new export restrictions as part of the package, which also takes aim at shipments of advanced memory chips and more chipmaking tools to China.

The move is one of the Biden administration's last large-scale efforts to stymie China's ability to access and produce chips that can help advance artificial intelligence for military applications, or otherwise threaten US national security.

It comes just weeks before the swearing-in of Republican former president Donald Trump, who is expected to retain many of Biden's tough-on-China measures, according to Reuters.

The package includes curbs on China-bound shipments of high bandwidth memory (HBM) chips, critical for high-end applications like AI training; new curbs on 24 additional chipmaking tools and three software tools; and new export curbs on chipmaking equipment made in countries such as Singapore and Malaysia.

Commerce Secretary Gina Raimondo said the action aims to prevent "China from advancing its domestic semiconductor manufacturing system, which it will use to support its military modernization."

Reuters first reported many companies involved and key details of the plan.

The tool controls will likely hurt Lam Research, KLA and Applied Materials, as well as non-US companies like Dutch equipment maker ASM International .

Among Chinese companies facing new restrictions are nearly two dozen semiconductor companies, two investment companies and over 100 chipmaking tool makers.

The companies include Swaysure Technology Co, SiEn Qingdao, and Shenzhen Pensun Technology Co, work with China's Huawei Technologies, the telecommunications equipment leader once hobbled by US sanctions and now at the center of China's advanced chip production and development.

They will be added to the entity list, which bars US suppliers from shipping to them without first receiving a special license.

Asked about the US curbs, Chinese foreign ministry spokesman Lin Jian said such behaviour undermined the international economic trade order and disrupted global supply chains.

China will take measures to safeguard the rights and interests of its firms, he added at a regular press briefing on Monday.

The Chinese commerce ministry did not immediately respond to a request for comment.

China has stepped up its drive to become self-sufficient in the semiconductor sector in recent years, as the US and other countries have restricted exports of the advanced chips and the tools to make them. However, it remains years behind chip industry leaders like Nvidia in AI chips and chip equipment maker ASML in the Netherlands.

The US also is poised to place additional restrictions on Semiconductor Manufacturing International, China's largest contract chip manufacturer, which was placed on the Entity List in 2020 but with a policy that allowed billions of dollars worth of licenses to ship goods to it to be granted.

For the first time, the US will add three companies that make investments in chips to the entity list. Chinese private equity firm Wise Road Capital, tech firm Wingtech Technology Co and JAC Capital because of their role "in aiding China’s government’s efforts to acquire entities with sensitive semiconductor manufacturing capability critical to the defense industrial bases of the United States and its allies with the objective of relocating these entities to China."

Companies seeking licenses to ship to firms on the Entity List generally get denied.

DUTCH AND JAPANESE EXEMPTED

An aspect of the new package that addresses the foreign direct product rule could hurt some US allies by limiting what their companies can ship to China.

The new rule will expand US powers to curb exports of chipmaking equipment by US, Japanese, and Dutch manufacturers made in other parts of the world to certain chip plants in China.

Equipment made in Israel, Malaysia, Singapore, South Korea and Taiwan is subject to the rule while Japan and the Netherlands will be exempt.

The expanded foreign direct product rule will apply to 16 companies on the entity list that are seen as the most important to China's most advanced chipmaking ambitions. The rule will also lower to zero the amount of US content that determines when certain foreign items are subject to US control. That will allow the US to regulate any item shipped to China from overseas if it contains any US chips.

The new rules are being released after lengthy discussions with Japan and the Netherlands, which, along with the United States, dominate the production of advanced chipmaking equipment.

The United States plans to exempt countries that adopt similar controls, the people said.

Another rule in the package restricts memory used in AI chips that correspond with what is known as "HBM 2" and higher, technology made by South Korea's Samsung and SK Hynix and US-based Micron.

Industry sources expect only Samsung Electronics to be affected. Analysts estimate Samsung generates about 30% of its HBM chip sales from China.

The latest rules are the third major package of chip-related export curbs on China adopted under the Biden administration.

In October 2022, the United States published a sweeping set of controls on sale and manufacture of certain high-end chips that was considered to be the biggest shift in its tech policy toward China since the 1990s.