TikTok and parent company ByteDance sued the Trump administration Monday afternoon, asserting that President Donald Trump’s Aug. 6 executive order barring “transactions” between ByteDance and U.S. companies is unconstitutional, politically motivated and denies the company its due process rights under the Fifth Amendment.
It also alleges that by preventing TikTok from operating in the United States, the order violates TikTok’s First Amendment rights as “in its code, [it’s] an expressive means of communication.”
The Aug. 6 order invoked the International Emergency Economic Powers Act (IEEPA) to essentially restrict ByteDance from doing business legally in the United States, an order that could have seen TikTok kicked off Google and Apple’s domestic app marketplaces.
TikTok and ByteDance—which filed jointly against Donald Trump, Commerce Secretary Wilbur Ross and the U.S. Department of Commerce—allege that the law was invoked improperly, as they say TikTok does not amount to an “unusual and extraordinary threat.” They also assert that the IEEPA explicitly bars “executive actions from restricting personal communications or the transmission of informational materials.”
The law specifically does not apply to “any postal, telegraphic, telephonic, or other personal communication, which does not involve a transfer of anything of value,” though one expert told Adweek recently that data could be considered a transfer of value.
The plaintiffs call the order a “gross misappropriation of IEEPA authority” and “pretext for furthering the President’s broader campaign of anti-China rhetoric in the run-up to the U.S. election.” They point out that the president has blamed China for the Covid-19 virus at political rallies, using terms like “Kung flu,” and that his campaign has run political advertisements asking supporters to “sign the petition now to ban TikTok.”
The suit, filed by attorneys at international law firm Covington & Burling, details ByteDance’s efforts to assure the U.S. government that it has taken steps to safeguard U.S. user data, particularly during a national security review by the Committee for Foreign Investment in the United States (CFIUS), which decided that TikTok must be sold to a U.S. company, a decision affirmed by a separate executive order Trump signed on Aug. 14. ByteDance and TikTok said they were granted “no notice or opportunity to be heard” before or after the Aug. 6 order.
The plaintiffs say Trump issued the Aug. 6 order after he “proclaimed in a campaign-style news conference that TikTok Inc. had ‘no rights’ and that he would ban TikTok if plaintiffs did not pay money to the U.S. Treasury to secure the U.S. government’s approval for any sale.” Under Trump’s concept of a broker’s fee for a TikTok sale, the plaintiffs say, “the president has taken plaintiffs’ property” in a separate violation of their Fifth Amendment rights.
TikTok and ByteDance draw a distinction between the two companies in the complaint. TikTok, they say, is a U.S. company based in Los Angeles, while ByteDance, its parent company, is now based in the Cayman Islands. ByteDance also operates two other applications, video-editing app CapCut and collaboration software Lark. They say IEEPA should not apply to ByteDance as a whole if TikTok is the issue, and it is beyond the scope of that law to prevent ByteDance from operating its other products.
In the complaint, TikTok details its growth—”as of July 2020, TikTok had 689,174,209 global monthly active users and by August 2020, TikTok surpassed 2 billion global downloads”—and made the case that it’s an important platform for political discourse in the United States, highlighting discussion around the police killing of George Floyd, the prominence of Trump satirist Sarah Cooper, and users organizing to inflate attendance expectations of Trump’s Tulsa rally. It also highlights American politicians active on the app and asserts that it not only employs Americans, but an “economic lifeline for many of its users, especially during the Covid-19 pandemic.”