WHEN VIRAL VIDEOS BECOME A NATIONAL SECURITY THREAT: TIKTOK INC. V. TRUMP

By: Haille Laws, Volume 105 Staff Member 

On August 23, 2019, President Donald Trump tweeted that “American companies are hereby ordered to immediately start looking for an alternative to China, including bringing . . . your companies [home] and making products in the USA.”[1] In an apparent effort to prove that the president had legal authority for such an “order,” he later tweeted: “For all the Fake News Reporters that don’t have a clue as to what the law is relative to Presidential powers, China, etc., try looking at the Emergency Economic Powers Act of 1977. Case closed!”[2]

These tweets followed President Trump’s earlier decision to declare a national emergency in May 2019 with respect to “Securing the Information and Communications Technology and Services Supply Chain.”[3] On August 6, 2020, he imposed sanctions on the popular social networking app TikTok and its Beijing-based parent company, ByteDance, under the International Emergency Economic Powers Act (IEEPA).[4] This order barred all “transactions” identified by the Secretary of Commerce with the companies, effective 45 days later.[5] As of September 18, 2020, these transactions include (1) downloads of the TikTok app or any TikTok app updates across any devices, (2) any provision of internet hosting services enabling the functioning or optimization of the mobile app, (3) any provision of content delivery network services enabling the functioning or optimization of the TikTok mobile app, (4) any provision of directly contracted or arranged internet transit or peering services enabling the functioning or optimization of the app, and (5) any utilization of the app’s constituent code, functions, or services in the functioning of software or services developed and/or accessible within the land and maritime borders of the United States and its territories.[6] The first transaction, the download prohibition, was to go into effect on September 27, 2020 at 11:59 PM, and all others were to go into effect on November 12, 2020 at 11:59 PM.[7]

President Trump claimed TikTok posed a national security threat because it facilitates the transfer of American data to the Chinese government and serves as a conduit for China to control undesired narratives and spread disinformation.[8]

In response, on September 18, 2020, TikTok and ByteDance filed a lawsuit against the Trump administration in D.C. federal court to stop the U.S. Department of Commerce from enforcing the ban, specifically the ban of the first transaction prohibiting new TikTok app downloads and updates. TikTok alleged that the government overstepped its authority under the IEEPA.[9] On September 23, TikTok moved for preliminary injunctive relief, arguing that they had a likelihood of success on their claims and that, absent an injunction, they would suffer irreparable harm.[10] On September 27, TikTok’s motion was granted, mere hours before President Trump’s first IEEPA action would have gone into effect.

This Post looks at TikTok’s lawsuit against the Trump administration and analyzes its merits. First, it briefly explains the legal background behind the lawsuit. Next, it looks at the complaint filed by TikTok. It then looks at the recent injunction order and its consequences. Lastly, it looks ahead to the potential proceedings and strategies of both parties going forward.

I. THE INTERNATIONAL EMERGENCY ECONOMIC POWERS ACT (IEEPA)

The IEEPA allows the President to take extensive economic measures in response to an “unusual and extraordinary” threat to the national security, foreign policy, or the economy of the United States, provided he declares an emergency with respect to that threat.[11] In 1994, Congress amended the IEEPA to create an exception for information and communications.[12] The amended IEEPA denies presidential authority “to regulate or prohibit, directly or indirectly (1) any . . . personal communication, which does not involve a transfer of anything of value; [or the import or export] regardless of format or medium of transmission, of any information or informational materials.”[13] While the 1994 amendment was written in the early days of online communication, federal regulators have seemingly acknowledged its application to the unencumbered export of American social media technology abroad.[14]

President Trump’s ban on TikTok is not the first time an IEEPA sanction has been brought against a foreign company.[15] Trump’s Executive Order 13873 declared a national emergency and then prohibited “transactions” with these companies in the future.[16] Courts have been lenient towards the President in matters of national security and foreign policy, including authorities exercised pursuant to IEEPA.[17] Despite this, there have also been successful due process challenges to other national security-related determinations of the Executive Branch.[18]

TikTok’s complaint asserted that it has implemented safeguards to help protect user data and privacy, that it sought proactively to engage with the U.S. government to address national security concerns, and that the executive order was designed to further President Trump’s “anti-China political campaign.”[19] Ultimately requesting injunctive relief, TikTok’s complaint claimed that the executive order violated the Due Process Clause of the Fifth Amendment, the First Amendment, and the IEEPA.[20]

II. COURT RULES FOR TIKTOK AND LIFTS BAN

The D.C. District Court ultimately granted the injunctive order for TikTok, finding that the company’s case was likely to succeed on the merits.[21] Despite the court finding the government’s national security interests to be strong, the ruling was based on the claim that the IEEPA, by its plain terms, barred the government’s action.[22] While TikTok raised a variety of legal claims, the court only addressed two of them to support its ruling that the IEEPA exceptions would likely prohibit Trump’s ban, which would cause TikTok “irreparable harm.”[23]

A. Protecting “informational materials” under 50 U.S.C. 1702(b)(3)

The IEEPA’s informational-materials limitation deprives the President of authority to regulate or prohibit, “directly or indirectly,” “regardless of format or medium of transmission,” and “whether commercial or otherwise,” the importation or exportation of “informational materials.”[24] TikTok argued that the government’s prohibitions were barred because they would prevent U.S. users from sharing and receiving content on TikTok, which indirectly affects them.[25] In response, the government argued that the bans “simply prohibit[ed] business-to-business economic transactions that support certain aspects of TikTok’s U.S. operations,” and has not “prohibit[ed] any importing or exporting of information,” or taken any action with respect “to TikTok users themselves.”[26]

The court found that the ban indirectly prohibited “informational materials” of the kind protected by § 1702(b)(3).[27] Noting the statute’s examples, he found that most content posted on TikTok is the functional equivalent of films, posters, records, photographs, artwork, and other mediums, and thus concluded that the sanction at least indirectly burdens both the import and the export of covered materials, as a majority of TikTok videos viewed abroad are U.S. generated.[28] Judge Nichols stated the ban would likely erode TikTok’s competitiveness by driving potential users to a rival, and cited “unrebutted evidence” that the app’s uncertain future was already forcing content creators and fans to other platforms.[29]

B. Protecting “personal communications” that do not involve a thing of value under 50 U.S.C. 1702(b)(1)

The court also stated that TikTok posts were personal communications, and “that the Secretary’s prohibitions will have the effect of preventing Americans from sharing personal communications on TikTok,” which the government did not dispute.

TikTok asserts the prohibitions “will destroy this online community, first by requiring the removal of TikTok from . . . U.S. app stores, and, when the remaining Prohibitions come into effect on November 12, 2020, shutting down TikTok entirely.”[30] The government countered by claiming that some communications on TikTok have economic value: each post is a valuable exchange by providing the product that draws an audience and thus advertising and data aggregation dollars.[31] The court disputed this, asserting that “even a letter a person drops in the mail adds some value to the mail carrier” and that this alone was not enough to allow the application of sanctions in a way that prohibits people from mailing personal letters.[32]

The court found that since TikTok demonstrated it was likely to succeed on the IEEPA claims, the preliminary injunction was appropriate.[33] Thus, TikTok would not be removed from the App Store.[34] Notably, the court did not address TikTok’s First Amendment claim, saying the company’s strong IEEPA case sufficed to award the injunction. But in a footnote, the court posited that TikTok raised “serious questions” with its other claims.[35]

III. LOOKING FORWARD: WHAT’S NEXT FOR TIKTOK?

The court refrained from blocking the Trump administration’s larger actions against TikTok, pointing out that only the prohibition on downloads of the app posed an immediate danger warranting a preliminary injunction.[36] Meanwhile, TikTok is pursuing an ownership deal with U.S. based companies Oracle Corp. and Walmart Inc. that would mitigate the government’s data security concerns.[37] This deal would create a new U.S. based company to run TikTok’s U.S. operations.[38] However, TikTok reports that the government has failed to adequately follow up in the wake of the preliminary injunction.[39]

On a global scale, some have observed that the administration’s attempted move is a major step toward further division of the internet, with powerful countries restricting or preventing access to foreign technology and apps, and creating “exclusive spheres of control over networks.”[40] This case and the government’s subsequent actions could act as a powerful lead that other countries follow.

[1] Donald Trump (@realDonaldTrump), Twitter (Aug. 23, 2019, 7:59 AM), https://twitter.com/realDonaldTrump/status/1164914963766546435 [https://perma.cc/W8UT-YF3C].

[2] This post was subsequently deleted. However, various news reports highlighted this statement at the time it was made. See, e.g., Peter Baker & Keith Bradsher, Trump Asserts He Can Force U.S. Companies to Leave China, N. Y. Times (Aug. 24, 2019), https://www.nytimes.com/2019/08/24/world/europe/trump-g7-summit.html [https://perma.cc/XB3J-PQXA].

[3] Exec. Order No. 13,873, 15 C.F.R. 7 (May 17, 2019).

[4] Exec. Order No. 13,942, 85 Fed. Reg. 60,061 (Aug. 6, 2020).

[5] Id.

[6] U.S. Dep’t of Commerce, Identification of Prohibited Transactions to Implement Executive Order 13942 and Address the Threat Posed by TikTok and the National Emergency with Respect to the Information and Communications Technology and Services Supply Chain, 85 Fed. Reg. 60061-01 (Sept. 24, 2020).

[7] Tiktok Inc. v. Trump, No. 1:20-cv-02658, 2020 U.S. Dist. LEXIS 177250 (D.C. Sept. 27, 2020).

[8] Exec. Order No. 13,942, 85 Fed. Reg. 60,061 (Aug. 6, 2020).

[9] Alaina Lancaster, TikTok Sues US Government, Challenges Executive Order Banning App, Law.Com Int’l (Aug. 24, 2020, 12:40 PM),

https://www.law.com/international-edition/2020/08/24/covington-burling-tiktok-sue-trump-administration-378-149450/ [https://perma.cc/DB7X-FMXE].

[10] Plaintiff’s Application for a Preliminary Injunction and Request for Expedited Briefing and a Hearing, TikTok Inc. v. Trump, No. 20-cv-02658 (D.C. Cir. Sept. 23, 2020).

[11] 50 U.S.C.A. § 1701(a)(B); Christopher A. Casey, Ian F. Fergusson, Dianne E. Rennack, & Jennifer K. Elsea, Cong. Rsch. Serv., R45618, The International Emergency Economic Powers Act: Origins, Evolution, and Use 10 (2020). [11] The President’s powers under the IEEPA are subject to the National Emergencies Act, which requires that any presidential declaration of an emergency be transmitted to Congress and published in the Federal Register. See 50 U.S.C. §§ 1621(a), 1631.

[12] See 50 U.S.C.A. § 1702(b).

[13] 50 U.S.C.A. § 1702(b)(1)–(3).

[14] See Jarred O. Taylor III, Information Wants to be Free (of Sanctions): Why the President Cannot Prohibit Foreign Access to Social Media Under U.S. Export Regulations, 54 Wm. & Mary L. Rev. 297 (2012) (discussing the Office of Foreign Assets Controls’ “general licenses” for the export of social media technology, and explaining why federal regulators cannot prohibit foreign access to social media under U.S. export regulations).

[15] See Exec. Order No. 12,957, 60 FR 14615 (1995).

[16] Exec. Order No. 13,873, 15 C.F.R. 7 (2019).

[17] See, e.g., Dames & Moore v. Regan, 453 U.S. 654 (1981); The President’s Authority to Order Companies Out of China, Covington (Aug. 28, 2019), https://www.cov.com/-/media/files/corporate/publications/2019/08/the_presidents_authority_to_order_companies_out_of_china.pdf [https://perma.cc/75N7-DAN4].

[18] Ralls Corp. v. Comm. on For. Inv. in U.S., 758 F.3d 296 (D.C. Cir. 2014); see also The President’s Authority to Order Companies Out of China, Covington (Aug. 28, 2019), https://www.cov.com/-/media/files/corporate/publications/2019/08/the_presidents_authority_to_order_companies_out_of_china.pdf [https://perma.cc/75N7-DAN4].

[19] Complaint for Injunctive and Declaratory Relief, TikTok Inc. v. Trump, No. 2:20-cv-7672 (2020).

[20] Id. A plaintiff seeking injunctive relief must demonstrate that (1) it has a likelihood of succeeding on the merits, (2) it faces irreparable harm if an injunction does not issue, (3) the balance of equities favors relief, and (4) an injunction is in the public interest. Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004).

[21] Tiktok Inc. v. Trump, No. 1:20-cv-02658, 2020 U.S. Dist. LEXIS 177250 (D.C. Sept. 27, 2020).

[22] Id. (“There is something to this argument. . . . But it does not find support in the text of the statute.”)

[23]Id. at *3 (D.C. Sept. 27, 2020).

[24] 50 U.S.C. § 1702(b)(3).

[25] Tiktok Inc., 2020 U.S. Dist. LEXIS 177250, at *17.

[26] Defendants’ Memorandum in Opposition to Plaintiff’s Motion for a Preliminary Injunction at 17, Tiktok Inc. v. Trump, 2020 U.S. Dist. LEXIS 177250 (D.C. Sept. 27, 2020).

[27] 50 U.S.C. § 1702(b)(3). 

[28] Tiktok Inc., 2020 U.S. Dist. LEXIS 177250.

[29] Id. at *23 (“The nature of social media is also such that users are unlikely to return to platforms that they have abandoned.”).

[30] Tiktok Inc., 2020 U.S. Dist. LEXIS 177250; see also TikTok, Why We Are Suing the Administration, TikTok Newsroom (Aug. 24, 2020), https://newsroom.tiktok.com/en-us/tiktok-files-lawsuit [https://perma.cc/KWR4-5EAP].

[31] Tiktok Inc., 2020 U.S. Dist. LEXIS 177250, at *20.

[32] See King v. Burwell, 576 U.S. 473, 494 (2015) (rejecting an interpretation because it was “implausible that Congress meant the Act to operate in this manner.”); see also Robert Chesney, TikTok Wins Round One: An Overview of Judge Nichol’s Preliminary Injunction Ruling, Lawfare (Sept. 28, 2020, 5:18 PM), https://www.lawfareblog.com/tiktok-wins-round-one-overview-judge-nicholss-preliminary-injunction-ruling [https://perma.cc/J8SN-EVLD].

[33] Tiktok Inc., 2020 U.S. Dist. LEXIS 177250.

[34] Id.

[35] Id. at *21.

[36] Id.

[37] Alex Sherman, TikTok Sues U.S. Government over Trump Ban, CNBC (Aug. 24, 2020, 11:00 AM), https://www.cnbc.com/2020/08/24/tiktok-sues-us-government-over-trump-ban.html [https://perma.cc/KE5S-LSK4]; Chesney, supra note 32; Khorri Atkinson, Judge Doubtful of Authority to Block TikTok’s US Restrictions, Law360 (Nov. 4, 2020, 5:46 PM), https://www.law360.com/articles/1325016?copied=1 [https://perma.cc/S8KH-NA8D].

[38] Atkinson, supra note 37.

[39] Sam Byford, TikTok Says the Trump Administration has Forgotten About Trying to Ban It, Would Like to Know What’s Up, The Verge (Nov. 10, 2020),

https://www.theverge.com/platform/amp/2020/11/10/21559677/tiktok-cfius-court-petition-ban-deadline?utm_campaign=theverge&utm_content=chorus&utm_medium=social&utm_source=twitter&__twitter_impression=true [https://perma.cc/SS6M-UDF2].

[40] David Ingram, Welcome to the ‘Splinternet’: Trump Adds to Fractures in Worldwide Web, NBC News (Aug. 7, 2020, 5:07 PM), https://www.nbcnews.com/tech/internet/welcome-splinternet-trump-adds-fractures-worldwide-web-n1236203 [https://perma.cc/X4TY-Z8DA].