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Donald Trump’s TikTok ban probably ignores exemptions in national security laws, judge concludes

By | Published on Tuesday 29 September 2020


The judge that issued an injunction pausing Donald Trump’s TikTok ban in the US did so because the laws used to justify said ban have an exemption covering “personal communications” and “information materials”.

When TikTok and its Chinese owner Bytedance initially went to court in the US in a bid to overturn the executive order from Trump that bans use of the popular video sharing app, they did so based on arguments that the US President had misused the International Emergency Economic Powers Act under which the order was issued. They also argued that the ban – and the way it had been instigated – breached the US constitution.

Similar arguments were presented when they returned to court last week seeking a preliminary injunction pausing the ban – which had been due to kick in on Sunday – pending the wider litigation on the matter, as well as concurrent efforts to placate Trump’s government by restructuring the TikTok Global business.

A federal judge in Washington DC issued that injunction on Sunday evening, though initially the judgement was sealed so we didn’t know the thought processes behind the ruling. Although TikTok itself stated: “We’re pleased that the court agreed with our legal arguments and issued an injunction preventing the implementation of the TikTok app ban”.

The judgement was then unsealed yesterday, confirming that judge Carl Nichols issued the injunction because he believes TikTok has a strong argument regarding Trump’s ban and the exemptions contained within the International Emergency Economic Powers Act.

Banning the use of the app would likely restrict the “personal communications” and sharing of “informational materials” by TikTok users, the judge concluded, and doing so is not allowed under the IEEPA.

The US government argued that that conclusion set a dangerous precedent, given that national security matters increasingly involve the distribution of data and content online. Nichols conceded that was potentially true, but basically said that if that’s a problem, it’s for Congress to address by reforming those laws.

The exemptions were included in the IEEPA for free speech reasons, with Congress having to balance national security concerns with the freedom of expression rights contained in the US Constitution’s First Amendment.

TikTok actually separately raised First Amendment issues with Trump’s ban, although Nichols didn’t directly consider those because the IEEPA arguments were sufficient to justify issuing the injunction. Although he did note that TikTok’s other arguments raised “serious questions”.

Trump has actually issued two executive orders targeting Bytedance. The first – the one due to originally come into effect earlier this month, then postponed to Sunday and now on hold – banned US citizens and companies from transacting with the Chinese company. The second – which comes into effect in November – orders the firm to offload all its US assets.

Nichols said he would only issue an injunction relating to the former at this time, as that was the issue with a pressing deadline, the judge having previously accepted TikTok’s arguments that being banned from the Apple and Google app stores within the US would have an immediate negative impact on its business.

It remains to be seen if the various legal arguments considered by Nichols this weekend get full-on scrutiny down the line.

Although Bytedance’s litigation against Trump’s executive orders continues, the firm still hopes that the proposed restructuring of its global TikTok business – including a new alliance with US technology firm Oracle – will be enough to allay concerns in Washington, so that Trump himself calls off his executive orders. We shall see how that turns out.