The Courts Step in to Protect TikTok from the Trump Administration
September 29 2020
In a dramatic Sunday morning hearing (conducted remotely via telephone), lawyers for TikTok and the Trump Administration battled over whether the government’s order banning TikTok from the Apple and Google app stores would take effect that night.
The Trump Administration has argued for months that TikTok is a threat to national security because its corporate owner, ByteDance, is a Chinese company. Most recently, the Commerce Department issued rules, which were to take effect on September 27 at 11:59pm, banning the app from U.S. app stores and prevented any further software updates. TikTok filed a lawsuit earlier this month challenging the Trump Administration’s actions. On September 23, it filed a motion for preliminary injunction, essentially asking the Court to stop the Commerce Department’s ban from taking effect.
Judge Carl J. Nichols of the United States District Court for the District of Columbia issued an order granting TikTok’s injunction. The ban did not go into effect, and TikTok remains available in the Apple and Google app stores.
The most interesting part of the opinion granting the injunction is the Court’s analysis of the government’s claims that TikTok presents a threat to national security. The government’s ban is based on the International Emergency Economic Powers Act (the “IEEPA”), which gives the federal government the right to ban certain economic transactions which threaten national security. For example, the government has designated the Islamic Republic of Iran a state sponsor of terrorism, and has blocked all financial transactions with the Iranian state and members of the Iranian government. Millions of dollars per year are seized from Iranian officials who attempt to route transactions through U.S. banks.
However, the IEEPA contains express exceptions for the transfer of information and personal communications. The Court found that TikTok users were trading films, photographs, art, and news across international borders, which fall squarely within the informational and personal exceptions to the IEEPA. The Court drew a parallel to news services, which can contain information and even propaganda from blocked entities, but cannot be banned through the IEEPA.
In short, it was not sufficient for the federal government to argue that information shared through TikTok might be accessed by China, because the sharing of information and personal correspondence cannot, by itself, establish a threat to national security under the IEEPA.
Although the Court’s order is almost certainly going to be appealed and the issue will be litigated for some time, TikTok’s has overcome a major hurdle in winning this preliminary injunction. It seems, for the time being, that TikTok is here to stay.