Chinese video app TikTok sued the United States government on Tuesday, accusing it of depriving the platform of due process when President Donald Trump issued an executive order to block it from operating in the country.
In a dramatic escalation in the US-China technology cold war, ByteDance-owned TikTok has said despite trying to engage in good faith with the Trump administration to find a solution and implementing stringent security measures, now they “simply have no choice” but to take the legal route to protect the rights of the company.
Trump has repeatedly said TikTok, owned by Chinese giant ByteDance, is a national security threat and has close ties to the Chinese government.
Trump’s twin Executive Order, issued on 6 August, seeks to ban US transactions with TikTok and Chinese social media app WeChat within 45 days. A week later he issued a third order giving the platform 90 days to divest from its American assets and any data that it has gathered in the United States.
TikTok, in a strongly worded statement, has iterated that the orders, described as an “extreme action” and passed “without any evidence” will strip the rights of the platform’s community of users, employees and advertisers.
“Now is the time for us to act. 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,” TikTok said in a blog.
Govt’s Decision ‘Heavily Politicised’: TikTok
On 16 July, TikTok, in a full page advertisement in an Australian newspaper, appealed to not make the app “a political football.”
Reiterating its stance that actions against TikTok globally are political in nature, the company once again said it believes the administration's decisions “were heavily politicised, and industry experts have said the same.”
The court complaint, filed in the Federal District Court for the Central District of California, states, “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 Executive Order issued by the Administration on 6 August 2020 has the potential to strip the rights of the community of TikTok users, 1,500 US employees and advertisers “without any evidence to justify such an extreme action”, and “without any due process”, the blog further said.
At a time when the popular app is indefinitely banned in India since 30 June and is facing scrutiny in Australia, and the UK over privacy concerns, TikTok’s decision to move court is the most public pushback so far in an increasingly bitter geopolitical drama between the US and China.
Why TikTok is Suing the Trump Administration
The company has outlined a number of reasons for taking legal action against the Trump administration.
In its blog, TikTok states that a ban on the app will jeopardise the TikTok community of 100 million users, 1,500 employees and the “10,000 more jobs planned in California, Texas, New York, Tennessee, Florida, Michigan, Illinois, and Washington State.”
1. US Govt Has Ignored TikTok’s Efforts to address Its Concerns
In its complaint before the court, the ByteDance-owned company stated it has “taken extraordinary measures to protect the privacy and security of TikTok’s US user data”, including by having TikTok store such data outside of China and in the United States and Singapore.
The company said it has also erected software barriers that help ensure that TikTok stores its US user data separately from the user data of other ByteDance products. According to the company they made these actions known to the US government during a recent US national security review of ByteDance’s 2017 acquisition of a China-based company, Musical.ly.
2. The Administration Ignored TikTok’s Commitment to Serving the US Market:
In its court filings, TikTok reiterated that key pesonnel including its CEO, Global Chief Security Officer, and General Counsel, are all Americans based in the United States—and therefore are not subject to Chinese law.
“U.S. content moderation is likewise led by a US-based team and operates independently from China," the company stated.
3. TikTok Deprived of Due Process
Among the core complaints by the platform is of its deprivation of due process. "By banning TikTok with no notice or opportunity to be heard (whether before or after the fact), the executive order violates the due process protections of the Fifth Amendment.”
The court filing claims Trump acted beyond his legal authority as it is “not based on a bona fide national emergency” and authorises the prohibition of activities that have not been found to pose “an unusual and extraordinary threat.”
4. Trump’s Executive Order Misuses Emergency Powers
Trump’s executive order has been issued under the IEEPA (International Emergency Economic Powers Act). It grants the US president sweeping powers to intervene in economic matters in order to respond to emergency national security concerns.
The order, however, has to be related to a formally declared emergency.
“Not only does the Executive Order ignore due process, it also authorises the prohibition of activities that have not been found to be "an unusual and extraordinary threat," as required by the International Emergency Economic Powers Act (IEEPA), TikTok said in its blog.
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