Popular short video app TikTok has filed a lawsuit against the Trump administration arguing that an executive order issued by Trump — which bans US transactions with ByteDance, TikTok’s parent company — is “unconstitutional”. It said that the executive order, issued on August 6, didn’t afford TikTok or ByteDance “due process of law”, and was done purely for “political reasons” rather than because of an “unusual and extraordinary threat” to the US.
TikTok also called the executive order a “gross misappropriation” of the International Emergency Economic Powers Act (IEEPA) and a “pretext for furthering the President’s broader campaign of anti-China rhetoric in the run-up to the U.S. election”. The suit was filed in the Federal District Court for the Central District of California. It is worth noting that TikTok’s suit is against the first of two executive orders issued by Trump against ByteDance (issued on August 6); the second one, issued on August 14 directed ByteDance to divest from its American assets and its rights to any user data that TikTok gathered in the country, within 90 days.
TikTok’s arguments
In the lawsuit, TikTok defended itself by distancing itself from China’s Communist Party, following allegations that Chinese businesses have to oblige to directions laid down by the country’s administration, which in turn can be harmful for users of those services elsewhere. It also said that TikTok’s global leadership constitutes several American nationals, who are not bound by Chinese law. Some of TikTok’s main arguments in the lawsuit:
TikTok claims it is not a privacy or national security threat: The executive order seeks to ban TikTok purportedly because of the speculative possibility that the application could be manipulated by the Chinese government, TikTok submitted. However, it said that it has taken “extraordinary measures” to protect the privacy and security of TikTok’s US user data. This includes storing such data outside of China, in the US and Singapore.
“While it is in storage, the following U.S. user data is currently encrypted using the industry-standard key management service (“KMS”) encryption algorithm (AES 256 GCM), which is operated by TikTok’s U.S. security team: names, birthdays, home addresses, phone numbers, emails, passwords, PayPal account information, contact list, private videos, direct messages, and certain fields of the log-in history,” TikTok submitted.
CFIUS refused to engage with ByteDance over its concerns: In 2019, the Committee on Foreign Investment in the United States (CFIUS) had contacted ByteDance to consider whether to review its acquisition of Musical.ly, TikTok revealed, while claiming that the review was “highly unusual in that ByteDance had acquired Musical.ly two years earlier in 2017, Musical.ly was previously Chinese-owned and based in China, and ByteDance had predominantly abandoned Musical.ly’s limited U.S. assets by the time of CFIUS’s outreach in 2019”.
“During this period, and through the course of the CFIUS review, ByteDance provided voluminous documentation and information in response to CFIUS’s questions. Among other evidence, ByteDance submitted detailed documentation to CFIUS demonstrating TikTok’s security measures to help ensure U.S. user data is safeguarded in storage and in transit and cannot be accessed by unauthorized persons—including any government—outside the United States,” it said.
However, the CFIUS never articulated any reason why TikTok’s security measures were inadequate to address any national security concerns, and effectively terminated formal communications with TikTok “well before the conclusion of the initial statutory review period”.
CFIUS failed to highlight the exact problems it had with TikTok: “At 11:55 p.m. on July 30, 2020—the final day of the statutory CFIUS review period—the Committee issued a letter stating that ‘CFIUS has identified national security risks arising from the Transaction and that it has not identified mitigation measures that would address those risks'”, TikTok noted in the lawsuit. But, the CFIUS letter was principally based on “outdated news articles” and failed to address all the documentation which TikTok claims to have provided the committee, it said.
“The CFIUS letter was principally based on outdated news articles, failed to address the voluminous documentation that Plaintiffs had provided demonstrating the security of TikTok user data, and was flawed in numerous other respects.”
The executive order is not rooted in national security concerns: TikTok also said that the August 6 executive order failed to follow due process and act in good faith, neither providing evidence that TikTok was an actual threat, nor justification for its punitive actions. “The executive order is not rooted in bona fide national security concerns. Independent national security and information security experts have criticized the political nature of this executive order, and expressed doubt as to whether its stated national security objective is genuine,” it added.
TikTok’s senior management is made up of American citizens: “The key personnel responsible for TikTok, 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,” TikTok submitted. It also claimed that US content moderation is similarly led by a US-based team and operates independently from China.
White House advisor Peter Navarro had previously called TikTok’s newly appointed CEO, and former Disney executive, Kevin Mayer, an “American puppet”.
Not the only lawsuit in the dock: WeChat users group sues Trump administration
A WeChat users group sued the Trump administration on August 21, seeking to bar the August 6 executive order that banned US transactions with WeChat as well, the Wall Street Journal reported. The lawsuit has been filed by US WeChat Users Alliance and other small businesses and individuals who say that they are not affiliated with the app’s owner, Tencent. The group’s lawyer called the app ban “unconstitutional”, as per the Journal.
TikTok sang a different tune in India
The Indian government had banned TikTok, WeChat and 57 other Chinese apps on June 29 under Section 69A of the Information Technology Act citing national security interests. Unlike in the US, in India, the company had then said that it had “no plans to pursue [legal] action” against the ban.
“We are committed to working with the government to address its concerns. We comply with the laws and regulations of the Government of India. Ensuring the data sovereignty, security and privacy of our users has always been and will continue to be a top priority for us,” the company had then said in a statement.
