A federal judge imposed a nationwide injunction against the Commerce Department order blocking transactions with the Chinese-owned video-sharing company TikTok, hitting the pause button on what would have been the effective ban of TikTok in the United States beginning after Nov. 12.
Judge Wendy Beetlestone, an Obama-appointee who has served on the U.S. District Court of the Eastern District of Pennsylvania since 2014, issued a 28-page ruling on Friday against the Trump administration, saying that “a nationwide injunction is warranted” and that its TikTok ban should not be allowed to go into effect in the U.S. until she has reached a final judgment in a civil lawsuit brought against President Trump and Commerce Secretary Wilbur Ross by Douglas Marland, Cosette Rinab, and Alec Chambers, three TikTok users.
“The spread in the United States of mobile applications developed and owned by companies in the People’s Republic of China continues to threaten the national security, foreign policy, and economy of the United States,” Trump said in his August executive order, adding, “TikTok automatically captures vast swaths of information from its users, including Internet and other network activity information such as location data and browsing and search histories. This data collection threatens to allow the Chinese Communist Party access to Americans’ personal and proprietary information.”
Trump issued another executive order telling the Beijing-based parent company ByteDance to sell its U.S. operations and empowered the commerce secretary to enact and enforce the orders under the International Emergency Economic Powers Act.
In September, Ross announced rules related to TikTok that would prohibit “any provision of internet hosting services enabling the functioning or optimization of the mobile application in the U.S.,” “any provision of content delivery network services enabling the functioning or optimization of the mobile application,” “any provision directly contracted or arranged internet transit or peering services enabling the function or optimization of the mobile application,” and “any utilization of the mobile application’s constituent code, functions, or services in the functioning of software or services developed and/or accessible” in the U.S.
Ross said at the time that “at the President’s direction, we have taken significant action to combat China’s malicious collection of American citizens’ personal data.” TikTok had been given until Nov. 12 to work out a deal with U.S. companies that could be approved by Trump and the Treasury Department.
ByteDance rejected a purchase offer in September from Microsoft and Walmart, which had teamed up on a proposal. Instead, Oracle, a California-based multinational technology firm, agreed to become TikTok’s “trusted technology partner” in the U.S., but that falls short of the Trump administration’s push for the app’s U.S. operations to be owned by a U.S. company. The Committee on Foreign Investment in the United States, headed by Treasury Secretary Steven Mnuchin, will conduct a national security review for any possible TikTok deal.
After the Commerce Department rules, Marland, Rinab, and Chambers filed a September lawsuit arguing that the executive order and its implementing regulations “violate the First Amendment” and “also violate the Due Process Clause of the Fifth Amendment because they deprive Plaintiffs of their liberty and property interests without adequate notice, an opportunity to be heard, or compensation.”
The Justice Department countered earlier in October that Trump and Ross had both “concluded that TikTok poses unacceptable risks to the United States based on its bulk collection of U.S. user data and susceptibility to the control and influence of the Chinese Communist Party” and argued that the three TikTok users “seek a nationwide injunction against the federal government’s actions, based on theories that would severely curtail the President’s authority to respond to emerging international threats, and require this Court to second-guess the Executive’s national-security judgments.” The DOJ said their claims were “meritless” and that their effort to stop the TikTok ban “would necessarily infringe on the President’s authority to block economic transactions with a foreign entity in the midst of a declared national-security emergency.”
But the judge said Friday that Marland, Chambers, and Rinab have 2.7 million, 1.8 million, and 2.3 million followers on TikTok, respectively, and that “without access to the TikTok app, Plaintiffs will lose access to all of these followers, as well as to the professional opportunities afforded by TikTok.” The judge argued that “this is not one of those rare circumstances” in which the courts couldn’t rule on the use of the IEEPA, writing that while the law “confers broad authority to respond to national emergencies, this authority is not unbounded.” The judge argued that “actions taken pursuant to IEEPA may not … regulate or prohibit … the importation or exportation of informational materials” and that “the TikTok app is a platform for creating and exchanging informational materials.”
A Washington, D.C., federal court had issued a separate injunction in September against the Trump administration’s rules that would have removed TikTok from app stores, which the Justice Department appealed to the U.S. Court of Appeals for the D.C. Circuit in October. The Justice Department did not immediately respond to the Washington Examiner’s question on whether it intended to appeal Friday’s ruling too.
ByteDance and TikTok have repeatedly claimed that they have not and would not turn over TikTok user data to the Chinese government, but national security experts have raised concerns about China’s 2017 national intelligence law, which requires all Chinese companies to assist Chinese intelligence services when asked — and to keep it secret. More than 100 million people in the U.S. use TikTok.
Numerous U.S. government officials, including John Demers, the assistant attorney general of the National Security Division, have described that a national security threat is posed by TikTok, and the Pentagon, other government agencies, and a host of organizations have banned employees from using the app. TikTok has filed a lawsuit against the Trump administration in federal court.
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