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Late Sunday, with the clock ticking towards a ban of TikTok in app stores, a federal judge issued an injunction. Today comes the unsealed opinion (read in full below), which provides fuller detail on why U.S. District Court Judge Carl Nichols intervened at the 11th hour to stop the Trump Administration from implementing its ban on the video app.
The ban was attempted upon the prospect that Americans’ personal data would be shared with the Chinese government. To stop TikTok parent ByteDance, Trump sought to exercise his authority under the International Emergency Economic Powers Act. His administration stepped forward to stop all transactions with the company.
Nichols, who was appointed to the federal bench by Trump himself, soundly repudiates the Trump Administration’s view of the government’s national security powers. The judge agrees the IEEPA grants the executive branch broad authority but doesn’t allow the regulation of informational materials and personal communications. The DOJ argued that Congress never intended to limit the President’s ability to prevent a foreign government from dominating data services, but Nichols says this view finds no support in the text of the statute. The judge says the law forecloses even the indirect regulation of news wires, and analogizes TikTok’s flow of information to such. The DOJ attempted to invoke the Espionage Act for its view that informational materials could be regulated, but Nichols draws the line. “[I]t is not plausible that the films, photos, art, or even personal information U.S. users share on TikTok fall within the plain meaning of the Espionage Act,” writes the judge.
How about personal communications? As the DOJ argued, what creators stream on TikTok holds economic value to the platform. Surely, that can be regulated.
“[S]uch an expansive reading of the phrase ‘anything of value’ would write the personal-communications limitation out of the statue,” responds the judge. “All communication service providers—from televisions stations and publishers to cellular phone carriers—get some value from a user’s ‘presence on’ their platform.”
The big conclusion that TikTok is likely to prevail on its claims carries some significance and may impact what ByteDance chooses to do with its platform. TikTok has been exploring a deal with Oracle, but Nichols’ reasoning may present some confidence of going it alone.
Read the full opinion:
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