The Trump administration faced its second suit regarding the recent executive orders to ban Chinese social apps over national security concerns. TikTok and its parent company ByteDance filed a complaint on Monday in the Central District of California after WeChat users’ complaint on Friday both for banning their respective apps.
TikTok claimed that the ban is unconstitutional, violates the Fifth Amendment, and exceeds the President’s authority. The executive order bans “transactions” with TikTok and ByteDance. TikTok claimed that the executive order was issued before providing notice to the plaintiffs and affording them due process, while also violating other aspects of the Fifth Amendment. TikTok also proffered that the order violated the First Amendment by restricting freedom of speech.
According to TikTok, more than 100 million Americans use the app to make and share videos. TikTok averred that the executive order will “destroy an online community where millions of Americans have come together to express themselves, share video content, and make connections with each other.”
TikTok argued that President Trump went beyond the scope of power given under the International Emergency Economic Powers Act (IEEPA), claiming that the action does not arise from a “bona fide national emergency”; as a result, TikTok stated that the executive order is unconstitutional and ultra vires. Typically, TikTok noted, the IEEPA gives the President “significant power to prohibit certain transactions to protect U.S. national security”; however, the plaintiffs felt that this executive order went beyond this authority.
Moreover, TikTok alleged that the “executive order seeks to ban TikTok purportedly because of the speculative possibility that the application could be manipulated by the Chinese government.” However, TikTok noted that the United States government should be aware that the plaintiffs “have taken extraordinary measures to protect the privacy and security of TikTok’s U.S. user data,” such as storing the data outside China and “erecting software barriers.”
TikTok also claimed that it is currently a U.S. based company, stating that it is based in Los Angeles. However, numerous reports have stated that it is a Beijing-based company. This information seems to contradict TikTok’s concerted effort in the complaint to note that it is willing to divest U.S. TikTok to an American company, like Microsoft. However, TikTok added that the President has “imposed conditions” on its effort to divest its U.S. business.
“The (Trump) Administration ignored our extensive efforts to address its concerns, which we conducted fully and in good faith,” TikTok stated in its press release. TikTok declared, “now is the time for us to act. We do not take suing the government lightly, however we feel we have no choice but to take action to protect our rights, and the rights of our community and employees.”
TikTok, represented by Covington & Burling LLP, has sought declaratory relief, an order invalidating the executive order and to permanently enjoin defendants from implementing or enforcing the order, and other relief.