The US government objected in court to a request by Chinese owned app TikTok to suspend the Trump administration’s ban set for November.
The ban, set to begin on November 12, is the second phase of proposed restrictions by the US Commerce Department. It would prohibit American companies from doing business with the app, and TikTok said earlier in the month that, if implemented, the restrictions would effectively end the app’s operations in the US.
In the US District Court for the District of Columbia filing on Friday, lawyers for the administration said ByteDance-owned TikTok failed to demonstrate “irreparable harm” the ban would have on the app. Even if the companies are able to prove such damages, there is still national security concern to consider, said the lawyers led by Daniel Schwei at the Justice Department.
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“On the other side of the balance is a formal national security and foreign affairs determination made by the president,” they said.
“The President explained that TikTok’s data-collection practices ‘threaten to allow to Chinese Communist Party access to Americans’ personal and proprietary information’, which could permit that foreign government to ‘build dossiers of personal information for blackmail, and conduct corporate espionage’.”
“Given the strong national security harms implicated here, plaintiff’s request for emergency relief should be denied,” they said.
TikTok urged District Judge Carl Nichols on October 14 to prevent the ban from taking effect, arguing that it would cause “irreparable harm” to the company.
TikTok said that the ban violated the International Emergency Economic Powers Act (IEEPA), a national declaration intended to be triggered by unusual and extraordinary threats to the country, and the First Amendment to the US Constitution.
TikTok also said the IEEPA did not allow the government to regulate or prohibit personal communication. The proposed ban also violated TikTok’s constitutional right to due process, it said.
On Friday, lawyers representing the defendants – President Donald Trump, Commerce Secretary Wilbur Ross and the Commerce Department – argued the bans are “fully consistent with IEEPA” because they do not “indirectly regulate” user content nor do they regulate “personal communications” or “information materials”.
The lawyers also said the prohibitions “regulate only certain business transactions”, therefore, TikTok’s First Amendment claim was meritless.
Further, it argued against TikTok’s claim that the platform itself should have freedom of speech protections, using one particular case when the First Amendment argument of a bookstore was rejected by the Supreme Court.
The defendants further argued that TikTok was given “all the process that was due”. TikTok received the pre-deprivation notice and the rights to be heard, they said. And the company had “extensive engagement with government officials” about a review over whether ByteDance’s acquisition of Musical.ly, which was later renamed TikTok, posed a national security threat.
“The US government’s interests in data security would obviously be achieved less effectively if TikTok could continue operating in an unrestricted manner, sending mass amounts of sensitive information about US persons to a foreign entity aligned with the [People’s Republic of China] and subject to its data collection authorities,” they said.
Trump in August said TikTok and WeChat, the Chinese messaging app owned by Tencent, were national security threats because the companies could be required to turn over users’ personal data to the Chinese government. Both companies have denied the claim. The executive order set in motion the proposed bans.
ByteDance sued the US government on August 24 over insufficient evidence to support the security threat claim.
Judge Nichols halted the first phase of the restrictions in a ruling favouring the app in September. The judge said ByteDance would probably succeed in proving the US government had overstepped its authority in invoking the IEEPA. The administration had also probably violated constitutional free speech protections, he said.
The lawsuit unfolds as ByteDance seeks government approval for a deal to sell its US operations to Oracle and Walmart, a transaction that was triggered by a separate executive order announced by Trump in August requesting that the business to be owned by American owners.
Discussions of the sale have stalled over the percentages of ownership and are likely to go past the November 3 presidential election.
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