TikTok To Sue Trump Administration Over Ban, As Soon As Tuesday

Aug 8, 2020
Originally published on August 24, 2020 2:35 pm

TikTok is planning to sue the Trump administration, challenging the president's executive order banning the service from the United States.

The video-sharing app hugely popular with the smartphone generation will file the federal lawsuit as soon as Tuesday, according to a person who was directly involved in the forthcoming suit but was not authorized to speak for the company. It will be filed in U.S. District Court in California, where TikTok's American operations are based, the person said.

NPR has learned that the lawsuit will argue that President Trump's far-reaching action is unconstitutional because it failed to give the company a chance to respond. It also alleges that the administration's national security justification for the order is baseless, according to the source.

"It's based on pure speculation and conjecture," the source said. "The order has no findings of fact, just reiterates rhetoric about China that has been kicking around."

The White House declined to comment on the expected litigation but defended the president's executive order. "The Administration is committed to protecting the American people from all cyber related threats to critical infrastructure, public health and safety, and our economic and national security," according to White House spokesman Judd Deere.

What the Thursday night executive order does

Under the president's Thursday night executive order, "any transaction" between a U.S. citizen and TikTok's Beijing-based parent company, ByteDance, will be outlawed in 45 days for national security reasons.

Such a sweeping ban would be fatal for TikTok in the U.S.

It is popular among teenagers and 20-somethings in the U.S., where more than 100 million users have downloaded the app. They use it to share dances and comedy skits in 60-second video bites, which often go viral. The app is such a cultural phenomenon that it has become a platform to discover new music and has even launched several breakout hits that have topped the Billboard charts.

The app has also been used to antagonize the president, including when thousands of teens reserved tickets to the president's rally in Tulsa, Okla., with no intention of going, inflating the Trump campaign's expectations for the event and causing embarrassment over the disappointing turnout.

If the presidential ban goes into effect, the app may no longer be able to send software updates, rendering TikTok unmanageable on smartphones and eventually nonfunctional.

The president's executive order stands to cut off American advertisers on its app and force Apple and Google to remove it from mobile app stores.

TikTok's more than 1,000 U.S.-based employees could have their paychecks indefinitely frozen. It could force landlords housing TikTok operations to evict them. And Trump's order could make it impossible for American lawyers to represent TikTok in any U.S. legal proceedings.

The source familiar with TikTok's internal discussions on the matter says the president's order appeared rushed and did not include carveouts or exceptions for TikTok to maintain any legal representation, which the company plans to argue is a violation of due process rights.

Typically, if the federal government launches an investigation, it will inform the company with a subpoena or some other kind of notice demanding a response to allegations of misconduct or malfeasance. Federal investigators at times also call representatives of the company for a confidential meeting about a looming enforcement action.

According to those working on TikTok's legal team, no such outreach from the White House requesting evidence took place before Thursday's executive order. TikTok lawyers view that as shortcutting standard procedure.

As such, the president's move took many inside TikTok aback.

Officials at TikTok acknowledged as much in its response to the order. "We are shocked by the recent Executive Order, which was issued without any due process," TikTok said in a statement. "The text of the decision makes it plain that there has been a reliance on unnamed 'reports' with no citations, fears that the app 'may be' used for misinformation campaigns with no substantiation of such fears, and concerns about the collection of data that is industry standard for thousands of mobile apps around the world."

Officials at TikTok declined to publicly comment on the looming legal battle.

Breaking the TikTok ban carries a $300,000 fine

Violating the order carries stiff penalties. After the 45-day period, doing business with TikTok could result in a $300,000 fine per violation and "willful" offenders could even face criminal prosecution.

Another issue that may be raised in TikTok's legal challenge is the argument that Trump overstepped his authority.

The order was issued in part under an executive power known as the International Emergency Economic Powers Act, which arms the president with broad authority to impose economic sanctions when presented with an "unusual and extraordinary threat," such as a risk to national security.

There are exceptions to that power that lawyers for TikTok will likely underscore in their litigation. For instance, the authority cannot be used to regulate or prohibit either "personal communication" or sharing of film and other forms of media, which TikTok can argue is the primary use of its app.

If Congress believes the president has used the emergency economic powers unjustly, lawmakers can overrule the order by passing a resolution that would terminate the order.

But any pushback from Congress is unlikely, as the skepticism about the Chinese Communist Party's potential ties to the country's technology companies has gathered bipartisan support.

Already, the Senate, by a unanimous vote, passed a bill Thursday banning TikTok on all government-issued devices.

Washington fears China access to American citizens' data

TikTok's terms of service spells out what it captures from users, including location data, browsing history and personal contacts.

The app also informs users that data can be shared with its Chinese parent company, ByteDance. This has has stirred fears in Washington that authorities in the Chinese government could potentially gain access to American citizens' data and put that information to use in a blackmailing scheme or in a targeted disinformation campaign.

Neither the Trump administration nor TikTok critics outside of government have offered evidence that the short-form video app has ever cooperated with Chinese authorities.

Some technology experts say the worries over China are warranted.

Former White House official Lindsay Gorman, who is now a fellow with the Alliance for Securing Democracy, told NPR that TikTok's parent company, ByteDance, is ultimately beholden to the Chinese Communist Party.

"The harsh reality of how businesses operate in China means that if the CCP wants that data, it will get it," Gorman said.

She added: "Leaving TikTok in Chinese ownership creates an information space vulnerability at a time leading up to an election when political communication is increasingly happening on the platform."

TikTok officials see the executive order as essentially a pressure campaign, a way of forcing an American company to move quickly to acquire the app's U.S. assets.

Microsoft — the American tech giant that owns Xbox, LinkedIn and Skype — is already in talks to buy TikTok, but those discussions are in the early stages.

Editor's note: TikTok helps fund NPR content that appears on the social media platform.

Copyright 2020 NPR. To see more, visit https://www.npr.org.

LEILA FADEL, HOST:

Under President Trump's executive order, TikTok would be banned in the U.S. starting next month. Today NPR learned that the company plans to take the Trump administration to court over the order. Its legal argument is that Trump's executive order is unconstitutional. For more, we're joined by NPR's technology reporter Bobby Allyn.

Bobby, tell us more about TikTok's case against the president's order.

BOBBY ALLYN, BYLINE: Right. So I talked to a person on TikTok's legal team who's actually writing the lawsuit against the administration, and here's what I've learned. TikTok is going to argue that it was never given any chance to respond to the concerns that are spelled out in Trump's executive order. Typically, there is some kind of prior notice. You know, like, a company like TikTok usually is given a chance to explain itself, but TikTok says that never happened here.

Additionally, TikTok's lawyers say the very basis for banning the app - that the Chinese Communist Party could potentially get its hands on Americans' data - is never proven.

FADEL: OK. So has the administration responded?

ALLYN: The White House when I reached out to them declined to comment on the forthcoming suit here. But they did say that they're committed to protecting Americans from cyberthreats that they say could endanger the nation's security. In Trump's order, you know, he relies on emergency economic powers that essentially would cut off all ties to TikTok.

What would that mean in practice? Well, it would mean if you want to download TikTok, you wouldn't be able to. Landlords who host TikTok's offices would be forced to evict them. The paychecks of TikTok's a thousand U.S. employees would be frozen indefinitely.

So, as you can imagine, TikTok's, you know, taking this pretty seriously. But I'll note here, you know, the app's been downloaded more than 100 million times, and it's really one of the first apps out of China to become a huge global success. But this order - it would be fatal for them.

FADEL: So the Trump order also put pressure on an American company to buy TikTok. And Microsoft is in talks to acquire it. Where do those talks stand?

ALLYN: Yeah. Yeah. I mean, the order was seen basically as a way to kind of speed up an acquisition of TikTok. And as you mentioned, Microsoft is one of a handful of companies considering buying TikTok. And I talked to people close to those discussions, and they all say talks are early. There's a lot of work still. You know, like, how many countries would Microsoft control TikTok in? Would TikTok's Chinese parent company, ByteDance, then become a competitor in some of the other markets? What would that look like?

So there's a lot that needs to be hashed out. But, you know, in the U.S., there are millions and millions of teens who would just be utterly heartbroken if...

FADEL: Yeah.

ALLYN: ...TikTok disappeared. You know, especially in the pandemic, it's just become a really important place for young people to digitally congregate and share videos of them dancing and cooking and even political activism. It's really become a place for young people to do all sorts of things.

FADEL: Right. And so the big question is, is TikTok - it's been a target in Washington over concerns about ties to China. But are those fears justified?

ALLYN: So TikTok collects just as much data as any app on your phone. The big difference is in its terms of service. So in the fine print, it says it can share that data with its Chinese parent company. And there's absolutely no proof as of now that TikTok has given that information over to Chinese authorities. And, you know, foreign policy experts and even some in the intelligence community have examined the TikTok app and said it doesn't look like it poses a big national security threat.

That said, if the Chinese government wanted data, experts have told me they would be able to get it from TikTok under Chinese law. So yeah, it's possible in theory that China can get its hands on Americans' data. But right now, there's no direct proof showing that's happening.

And TikTok, for its part, you know, has been bending over backwards to show it is not beholden to China. Its primary servers for U.S. data are based in Virginia. It's even opened up its algorithms for regulators and experts to examine. But still, China hawks say, you know, TikTok has got to go.

FADEL: That's NPR's Bobby Allyn.

Thanks so much, Bobby.

ALLYN: Hey, thank you. Transcript provided by NPR, Copyright NPR.