• Saturday, June 15, 2024
businessday logo


TikTok had ‘no choice’ but to sue Trump administration

Untitled design – 2020-08-25T105619.884

TikTok has said it had “no choice” but to sue the Trump administration as it filed a legal challenge opposing the US president’s executive order blocking the video-sharing app in the country.

The company argued on Monday that the August 6 order was politically motivated and made without due process, adding that it unjustly targeted its employees and users and had the “potential to strip the rights of that community without any evidence to justify such an extreme action”.

According to papers filed to a Los Angeles federal court, the company is suing US President Donald Trump, the US Department of Commerce and commerce secretary Wilbur Ross.

“We do not take suing the government lightly,” it wrote in a blog post. “However, we feel we have no choice but to take action to protect our rights.”

TikTok said its efforts to co-operate with the US Committee on Foreign Investment in the US (Cfius) had been “disregarded” by the Trump administration. Cfius in 2019 began investigating TikTok’s acquisition of Musical.ly, another Chinese app with a strong US user base, for $1bn in 2017.

“Cfius never articulated any reason why TikTok’s security measures were inadequate to address any national security concerns,” TikTok said in its filing, “and effectively terminated formal communications with plaintiffs well before the conclusion of the initial statutory review period”.

The White House has yet to comment on the challenge, referring reporters to the Department of Justice, which declined to comment.

Mr Trump’s August 6 order imposed a 45-day deadline on banning any transactions with the app, after the US president had previously decried TikTok as a threat to the privacy of the Americans who use it. The app has about 100m users and is most popular with teenagers.

In a separate order, on August 14, the president gave parent company ByteDance 90 days to divest its TikTok business in the US. Microsoft and Oracle are among the parties in talks to buy the app. Mr Trump has suggested that the US Treasury should receive a cut of the proceeds from the sale.

The executive order is not rooted in bona fide national security concerns

TikTok filing

TikTok is arguing that the Trump administration incorrectly invoked the International Emergency Economic Powers Act, a 1977 law that gives the commander-in-chief broad powers to regulate economic activity in the event of a national emergency.

In the August 6 order, TikTok was described as giving “the Chinese Communist party access to Americans’ personal and proprietary information — potentially allowing China to track the locations of Federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage”.

TikTok has denied that its user data can be accessed by its parent company in China or the Chinese government.

“The executive order is not rooted in bona fide national security concerns,” TikTok’s filing reads.

“Independent national security and information security experts have criticised the political nature of this executive order, and expressed doubt as to whether its stated national security objective is genuine.

“The president’s demands for payments have no relationship to any conceivable national security concern and serve only to underscore that defendants failed to provide plaintiffs with the due process required by law.”

TikTok faces an uphill battle in court, according to Paul Marquardt, a partner in the national security practice at Cleary Gottlieb.

“The government does not have to convince the court that its national security determination is correct,” he said. “[TikTok] has to convince the court that the government’s national security determination is irrational — and that’s a very heavy burden.”

TikTok said it had 1,500 employees across the US, with 10,000 more jobs planned. A number of existing employees have launched a separate, grassroots legal effort over concerns the executive order will mean they do not get paid.

Meanwhile, users of WeChat — another Chinese app targeted by a similar Trump executive order — have filed their own lawsuit calling the move to block its use unconstitutional. The Tencent-owned app is hugely popular with Chinese diaspora in the US.