TikTok takes Trump to court

Chinese-owned video-sharing app TikTok has filed a lawsuit in federal court challenging the administration of president Donald Trump over its efforts to ban the service in the US.

The incoming ban, handed down earlier in August through an executive order from the president, would see TikTok, and its compatriot social media app WeChat, banned in the US next month, although there is an additional grace period in place to enable its parent, ByteDance, to negotiate with multiple parties over the possibility of buying out its US operations.

TikTok said it had created a “thriving community” in the US – more than 100 million Americans use the service and it employs 1,500 people in the US, with plans to hire 10,000 more – and it had a responsibility to them.

“The executive order issued by the administration on 6 August 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,” a spokesperson for the firm said in a statement.

“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.” 

In its complaint, TikTok said it had made clear that Trump ignored full, bona fide attempts to address its concerns even though it disagreed with them, and pointed out that it has already taken “extraordinary” measures to protect the privacy and security of its US users’ data, which is stored in datacentres located in northern Virginia, near Washington DC itself, and in Singapore.

It also accused the Committee for Foreign Investment in the US (CFIUS) of disregarding evidence it has provided to demonstrate the security of US user data over a three-year period.

It added that its CEO, global chief security officer and general counsel were all American citizens located in the US, and therefore not subject to any Chinese law that might compel it to hand over user data to the Chinese government, and that its content moderation in the US is likewise led by a US-based team operating independently.

It also alleged that the Trump administration is in violation of the International Emergency Economic Powers Act (IEEPA) – under which it is acting – because it is authorising the prohibition of activities that have not been found to be an “unusual and extraordinary threat”, and violates the due process protections under the Fifth Amendment of the US constitution.

TikTok said that Trump’s actions were not supported by the emergency declared in 2019 under a previous executive order, because this order was designed to specifically address US security concerns over the ability of Chinese telecommunications hardware suppliers – specifically, Huawei – to abuse access to ICT technology and services that underpin the digital economy and support critical national infrastructure, two things that, it will argue, TikTok manifestly does not do.

The spokesperson said: “The administration failed to follow due process and act in good faith, neither providing evidence that TikTok was an actual threat, nor justification for its punitive actions. We believe the administration's decisions were heavily politicised, and industry experts have said the same.

“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.

“Our legal challenge is a protection to ensure that these efforts can take place without the threat of an unwarranted ban hovering like a dark cloud over the joy and creativity of our community.”