TikTok challenges US national security claims, calls ban unlawful

Jodi Xu Klein
·4-min read

TikTok returned to federal court in Washington on Friday to challenge claims made by the US government as Washington tries to ban the popular video sharing app.

TikTok’s owner, Beijing-based ByteDance, in a rebuttal, called the Trump administration’s order “unlawful”, “arbitrary” and “capricious” and again asked Judge Carl Nichols to grant its request to stop the ban from taking effect on November 12.

The filings were in response to an objection made by the US government last week asking the judge to allow the ban, saying TikTok failed to prove “irreparable harm” as the result of the restrictions.

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“The government’s strained argument that no irreparable harm has been proven – despite the commerce secretary’s pronouncement that the effect of the remaining prohibitions would be to ‘shut down’ TikTok – is difficult to take seriously,” TikTok’s lawyers said on Friday.

US Commerce Secretary Wilbur Ross said in September that by November 12, if TikTok did not resolve the national security concerns, the app would be “for all practical purposes, shut down”.

The US commerce department proposed the bans in August after President Donald Trump signed executive orders claiming TikTok and WeChat, the Chinese messaging app owned by Tencent, were national security threats because they could be required to turn over users’ personal data to the Chinese government. Both have denied the claim.

The ban would prohibit American companies from hosting web services and delivering content of the app. TikTok said in October the restrictions, if implemented, would effectively end the app’s operations in the US and cause “irreparable harm” to the company.

TikTok also argued that the government overstepped by invoking the International Emergency Economic Powers Act, violated its First Amendment rights and failed to provide it proper due process.

Lawyers representing the defendants – Trump, Ross and the commerce department – refuted all three points last week.

The prohibitions “regulate only certain business transactions”, therefore, TikTok’s First Amendment claim was meritless, they said.

US government appeals TikTok ruling that suspended Trump’s ban

They also challenged TikTok’s claim that the platform should have free speech protections, citing a case in which a bookstore’s First Amendment argument was rejected by the US Supreme Court.

The defendants also argued that TikTok was given “all the process that was due”. The company had “extensive engagement with government officials” about a review over ByteDance’s acquisition of Musical.ly, which was later renamed TikTok.

But above all, the government argued that TikTok was a national security threat.

“The president explained that TikTok’s data collection practices ‘threaten to allow to Chinese Communist Party access to Americans’ personal and proprietary information’, which could permit that foreign government to ‘build dossiers of personal information for blackmail, and conduct corporate espionage’,” said the lawyers, led by Daniel Schwei at the justice department.

On Friday, TikTok said the government “consistently failed to explain how the evidence” justified a ban of the app and “that the agency banned TikTok based on a threat from China, not from TikTok itself”.

TikTok went on to say the US government’s assertion that TikTok posed as a national security threat because of the massive amount of US user data it collected was nothing but “singling out” TikTok “for an industry-wide issue”.

And “that the risk of ByteDance being coerced by the [Chinese Communist Party] to compromise TikTok is anything but speculation,” it said.

The US government’s “repeated invocation of national security cannot mask what this case is fundamentally about: limitations that Congress imposed on the executive through the plain language of a statute,” TikTok’s lawyers said.

“Here, the executive violated those limitations, claiming powers that Congress explicitly and deliberately withheld.”

Since the previous ruling, neither the government’s position nor the IEEPA statute has changed, therefore, the remaining prohibitions should be halted, just like the court ruled in September.

On September 27, Judge Nichols blocked proposed restrictions to stop new US downloads of the app. He said the president likely overstepped his authority to invoke the emergency powers act and had also probably violated constitutional free speech protections.

Nichols has tentatively scheduled the case to be heard on Monday.

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