TikTok to Trump: Ban Violates Due Process and "We Simply Have No Choice" But to Sue

Donald Trump at Tulsa Rally - H - 2020
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Two weeks after President Donald Trump signed an executive order that many interpreted as an outright ban on the use of TikTok in the U.S. the popular social video app is following up on its promise to sue.

TikTok is owned by Beijing-based ByteDance and, on August 6, Trump issued an order that would bar "any transaction by any person" with that company or any of its subsidiaries. He's invoking the National Emergencies Act and the International Emergency Economic Powers Act because TikTok allegedly "captures vast swaths of information from its users," which could allow the Chinese government "to track the locations of Federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage."

The order sparked swift criticism with many questioning whether Trump has the authority to stop Americans from exercising their constitutionally-protected free speech rights via 15-second video clips.

TikTok is asking a California federal judge for a declaration that the executive order is unlawful and unconstitutional and an injunction barring Trump from enforcing it.

The company argues the president is abusing emergency powers that past presidents have used to protect the country from things like terrorism and weapons of mass destruction.

TikTok lays out seven reasons it says the order is unlawful and unconstitutional including that it bans TikTok with no notice or opportunity to be heard in violation of the due process protections of the Fifth Amendment, that it's not based on a bona fide national emergency and that it violates TikTok's First Amendment rights. It also notes the International Emergency Economic Powers Act contains an express carve out for personal communication and the transmission of information.

"The order is thus a gross misappropriation of IEEPA authority and a pretext for furthering the President’s broader campaign of anti-China rhetoric in the run-up to the U.S. election," states the complaint, which is posted in full below.

"Neither TikTok Inc. nor ByteDance provides TikTok user data to the Chinese government, and the Chinese government has never asked for data on TikTok users or to moderate TikTok content."

The video-sharing app also notes that the president's order ignored an ongoing national security review process by the Committee on Foreign Investment in the United States. According to the complaint, CFIUS in June began a review of ByteDance's 2017 acquisition of Musical.ly, a China-based platform that would eventually become TikTok. That the government waited years to look into the transaction is further evidence there's no national emergency here, the company argues.

TikTok's complaint alleges ByteDance turned over documentation demonstrating its security measures, provided various mitigation plans and notified CFIUS that it signed a non-binding letter of intent with Microsoft in contemplation that the company could acquire TikTok's US operations. Despite these efforts, according to the complaint, CFIUS refused to engage with ByteDance and on July 30, its final day of the statutory review period, issued a letter stating it had identified national security risks and had not identified mitigation measures to address those risks.

"The CFIUS letter was principally based on outdated news articles, failed to address the voluminous documentation that Plaintiffs had provided demonstrating the security of TikTok user data, and was flawed in numerous other respects," states the filing. "Most conspicuously, the Letter entirely failed to substantively address the actual mitigation proposals that were on the table — namely, ByteDance’s willingness to restructure its U.S. business."

Trump's order followed.

"As its equivocal language telegraphs, the executive order provides absolutely no evidence for any of its self-described findings," argues TikTok in the complaint. "The order cites no evidence that TikTok enables the Chinese government to track any U.S. persons, nor does the order substantiate its allegations regarding TikTok’s supposed censorship or its use as a platform for disinformation. ... The order uses such equivocal language because, in fact, TikTok does none of these things."

While the full extent of the order won't be known until Secretary of Commerce Wilbur Ross Jr. issues clarification on Sept. 20, TikTok says even the existence of the order poses "an existential threat" to its business.

The company on Monday announced the suit on its blog, along with a statement that reads, in part, "To be clear, we far prefer constructive dialogue over litigation. But with the Executive Order threatening to bring a ban on our US operations – eliminating the creation of 10,000 American jobs and irreparably harming the millions of Americans who turn to this app for entertainment, connection, and legitimate livelihoods that are vital especially during the pandemic – we simply have no choice."

TikTok is suing Trump in his official capacity as president, Ross in his official capacity as commerce secretary, and the U.S. Department of Commerce itself.

The departments of justice and commerce have not yet responded to a request for comment on the complaint.