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TikTok sues Trump administration over ban

By LIA ZHU in San Francisco | China Daily Global | Updated: 2020-08-25 10:35

Photo taken on Aug 21, 2020 shows a logo of the video-sharing social networking company TikTok's Los Angeles Office in Culver City, Los Angeles County, the United States. [Photo/Xinhua]

TikTok filed a legal challenge on Monday against the Trump administration's order to ban the popular video-sharing app in the US, arguing it violates constitutional rights to due process and free speech.

"We do not take suing the government lightly; however, we feel we have no choice but to take action to protect our rights, and the rights of our community and employees," the company said in a blog post on Monday.

The lawsuit, filed in federal court for the Central District of California, argues that President Donald Trump's executive order violates the due process protections of the Fifth Amendment "by banning TikTok with no notice or opportunity to be heard".

The order "is not based on a bona fide national emergency and authorizes the prohibition of activities that have not been found to pose an unusual and extraordinary threat", TikTok's lawyers said in the complaint.

The president and some Republican lawmakers have raised national security concerns that TikTok could share American users' data with the Chinese government. On Aug 6, Trump issued the first executive order against TikTok, banning US transactions with the company if it's not sold to a new owner within 45 days.

The order, taking effect on Sept 20, draws legal authority from the International Emergency Economic Powers Act (IEEPA), which allows the president to regulate economic transactions in a national emergency. Past administrations have used it for a range of issues, including terrorism and drug trafficking, but have never used it against a global technology company.

A week later, Trump issued a second executive order, giving TikTok's Chinese parent company ByteDance 90 days to divest its 2017 acquisition of a Chinese-based app Musical.ly, which later merged with TikTok. Monday's lawsuit challenges the Aug 6 executive order, not the second order, which takes effect on Nov 12.

TikTok said in the lawsuit that the process of identifying national security risks arising from the acquisition of Musical.ly was "principally based on outdated news articles" and did not address "the voluminous documentation" provided by TikTok demonstrating the security of user data. The company said it had taken "extraordinary measures to protect the privacy and security of TikTok's US user data", which included storing American users' data outside China on servers in the US and Singapore.

It also had erected "software barriers" that stored US user data separately from the data kept on other products and companies owned by ByteDance, according to the complaint.

TikTok also alleges the executive order violates its First Amendment rights "in its code, an expressive means of communication" and "facially burdens TikTok Inc.'s speech for both functional and content-based reasons".

The American Civil Liberties Union (ACLU) also noted that Trump's twin orders on Aug 6 to ban TikTok and Chinese social media app WeChat violate the First Amendment for users while doing little to protect personal data from abuse.

With no specific and direct evidence of harm from those two apps, Trump's orders are an abuse of emergency powers under the pretense of national security, "to score political points, serve his xenophobic and racist agenda, and spread fear and uncertainty", said the organization in an article on its website.

The president's order to ban WeChat, widely used by people of Chinese background in the US, is also facing legal challenges. On Friday, a nonprofit group called "WeChat Users Alliance" and several individuals filed a lawsuit in federal court in San Francisco, arguing that the executive order violated their First Amendment rights and other constitutional protections.

Unlike WeChat, TikTok is primarily used by young adults in the US. By February 2019, the app had more than 26.7 million monthly active users in the US. The number grew to 91.9 million by June this year; based on quarterly usage, 100 million Americans use the app, according to TikTok's complaint.

"The background and timing of the executive order plainly suggest that it was designed not for a bona fide national security reason but instead to further the president's anti-China political campaign," said TikTok in the complaint.

Trump also has suggested that parties to the potential sale should pay a fee to the US government for facilitating the deal. In the lawsuit, TikTok said, "The President's demands for payments have no relationship to any conceivable national security concern."

The argument is echoed by the ACLU.

"Privacy concerns are not the motivating factor behind the bans," said the organization. "In fact, the data TikTok and WeChat collect does not appear substantially different from the kinds of data other foreign companies or American companies like Facebook or Google collect. And Trump has made no attempt to address privacy invasions caused by these companies operating in the United States."

Joseph Steinberg, a cybersecurity expert, also noted in a blog that "the type of data that Facebook gathers likely gives it far more detailed intelligence about its users than TikTok ever could assemble with its current platform".

TikTok's rapid success in the US has made it the biggest threat to Facebook's dominance of social media, which has recently closed a TikTok-like app, Lasso, and launched another clone app, Reels.

Facebook CEO Mark Zuckerberg has stoked Washington's fears about TikTok through personal outreach and public statements, according to a Wall Street Journal article citing sources familiar with the matter.

His arguments about TikTok show a reversal in his stance on China. In 2010, he said he was planning to learn Mandarin and he made several well-publicized trips to China. Since last year, he has publicly warned that TikTok, owned by a Chinese company, poses a direct threat to American technology, a theme he reiterated at last month's antitrust hearing on Capitol Hill.

Zuckerberg also made the case to Trump in a private dinner late October that the rise of Chinese internet companies threatens American business; after Zuckerberg's meetings with several senators in October, the senators wrote a letter to intelligence officials demanding an inquiry into TikTok, and the government began a national security review of the company soon after, according to The Wall Street Journal.

"In terms of Facebook's lobbying efforts to ban TikTok, I think that's very easily understood," said Gary Rieschel, a Seattle-based venture capitalist. "How much of that is being done, how much money they're spending, I would have no idea. But I think we're all a little naive about what actually goes on in the background of things."

While much has been said of what's good for the US, it's "clearly good for Facebook if TikTok is banned in the US", said Rieschel.

"I don't think Facebook is a huge fan of Microsoft or Twitter buying TikTok, especially if the algorithmic capabilities and everything come with it. I think that would create a perhaps even more fierce competitor than they would have just with TikTk alone in the US," he added.

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