TikTok Alleges US Government's Ban Is Unconstitutional in New Lawsuit

August 24, 2020 11:58 pm

Beijing (PingWest)—TikTok, the short video app owned by Chinese unicorn ByteDance, filed a lawsuit against the US government Monday, challenging the Trump administration’s efforts to ban the company’s American operations.

President Donald Trump signed Executive Order 13942 (the TikTok ban order) on August 6, citing the International Emergency Economic Powers Act (IEEPA), potentially banning TikTok in the US in 45 days, or as early as Sept. 15.

TikTok issued a blog post on Monday, claiming that the executive order not only violated the due process protections of the Fifth Amendment to the United States Constitution, but also misused the IEEPA. For that, it is filing a complaint in federal cort challenging the EO.

"The Executive Order issued by the Administration on August 6, 2020 has the potential to strip the rights of that community without any evidence to justify such an extreme action, and without any due process. We strongly disagree with the Administration's position that TikTok is a national security threat and we have articulated these objections previously," the company's statement, citing its complaint, wrote.

"By banning TikTok with no notice or opportunity to be heard (whether before or after the fact), the executive order violates the due process protections of the Fifth Amendment," read the complaint.

This isn't the first time that a Chinese-backed company sued the US Government for being unconstitutional. 

Ralls, an affiliate of Chinese heavy equipments giant Sany, sued the Obama Administration with the same claims TikTok is using today, alleging that the US Government violated Fifth Amendment-protected due process, and got a favorable ruling from the D.C. Circuit Court of Appeal in 2014. Both parties reached a settlement in 2015, with the US Government retracting the decision that Ralls' acquisition of wind power projects in the US constituted national security concerns.

Per a piece of the complaint cited in the company statement, TikTok also seem to have argued that EO 13873, which was signed back in May, 2019 and cited by the TikTok ban order, should not have affected TikTok because it is not a "telecommunications provider"。

"That previous executive order was designed to address asserted U.S. national security concerns about certain telecommunications companies’ ability...TikTok is not a telecommunications provider and it does not provide the types of technology and services contemplated by the 2019 executive order." according to the cited part of the complaint.

But it isn't immediately clear which part of the EO 13873 the TikTok complaint is referring to, as the order defines "information and communications technology or services" as a broad term that could indeed include TikTok, an internet-connected software service, and did not specifically mention any telecommunications company. A TikTok representative did not immediately respond to PingWest's request for comment.

In the statement, the company claimed that its efforts, including the "voluminous documentation" it sent to, and attempts to communicate with, the US government, in order to prove that it doesn't share data with the Chinese government and that it isn't a national security threat, was ignored.

"The executive order seeks to ban TikTok purportedly because of the speculative possibility that the application could be manipulated by the Chinese government," read the complaint,

"But, as the U.S. government is well aware, Plaintiffs have taken extraordinary measures to protect the privacy and security of TikTok’s U.S. user data, including by having TikTok store such data outside of China (in the United States and Singapore) and by erecting software barriers that help ensure that TikTok stores its U.S. user data separately from the user data of other ByteDance products.”

TikTok didn't challenge a separate Committee on Foreign Investment in the United States (CFIUS) order announced on August 14, that ByteDance must divest its U.S. assets in 90 days, or by November 12. 

However, the complaint does show that TikTok has major disagreements with how the CFIUS investigation was conducted, the lack of communications during the process, and the result.

"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," read the complaint

TikTok continues to discuss a sale of its U.S., Canadian, Australian and New Zealand operations with Microsoft. It is also reported that other companies, including Twitter, Orcale, etc. expressed interest in joining talks.