NRPLUS MEMBER ARTICLE T ikTok, the besieged video-sharing app, is taking the U.S. government to court over President Trump’s decision to issue an executive order that bans the app after September 20. On Monday, the company’s lawyers filed a lawsuit, alleging that the U.S. government issued the order in an overly broad claim of the president’s national-security powers.
Of course, all of this might be moot if TikTok — which is owned by ByteDance, a Chinese tech company — is acquired by American investors. The app has faced bipartisan criticism in recent months, as people have worried that it might give Americans’ data to the Chinese Communist Party. All of this came to the fore late last month when Trump abruptly promised to ban the app. He quickly backtracked, leaving room for ByteDance to sell the app to an American company, such as Microsoft, Oracle, or Twitter. On August 6, he issued an executive order laying the groundwork for a ban set to take effect next month. The order prevents U.S. entities from doing business with ByteDance — this is the essence of a “ban” on TikTok. What this means in practice will only become clear once the Trump administration decides how to enforce it. At the very least, this will force Apple and Google to remove the app from their online stores, but enforcement could go a lot farther than that.
In the meantime, TikTok’s lawyers are working to protect the company from such a potential ban. The complaint filed in the U.S. District Court for the Central District of California seeks an injunction against Trump’s executive order banning TikTok. The attorneys paint the picture of an unlawful invocation of the president’s emergency economic powers — the basis of the TikTok-ban order — motivated by presidential politics, a measure that they say violates the company’s constitutional rights. TikTok and ByteDance, which is also named as a plaintiff, are effectively throwing the kitchen sink at the executive order.
The courts typically grant the executive branch significant leeway in national-security matters, and Trump’s determination that TikTok constitutes a national-security threat might go unquestioned. Lawfare’s Robert Chesney views TikTok’s claims in the complaint as largely ineffectual, but he writes, however, that the courts could grant a preliminary injunction that buys TikTok time. And that might be all that the company needs right now: In addition to the August 6 order banning TikTok, Trump issued another on August 14 that set a 90-day deadline for the acquisition talks. By fighting off a ban, TikTok might be trying to land a deal that could take longer to negotiate than the September 20 deadline for a ban would allow.
However the suit plays out, though, the complaint is an interesting look at the arguments for and against government action on TikTok. It highlights some of the rhetorical sleights of hand that TikTok and its U.S.-based defenders use. This primarily amounts to eliding the links between TikTok, ByteDance, and the Chinese Communist Party. TikTok is owned by ByteDance, and ByteDance — which is a Chinese company despite its strained assertions that it is incorporated in the Cayman Islands — is subject to the CCP’s requests for information. TikTok, unsurprisingly, asserts the opposite.
“There is no connection between TikTok and the Chinese government. Nor does the Chinese government exert any control over TikTok Inc. through its parent company, ByteDance,” states the complaint. The complaint makes these points to argue that the Chinese government has no way to access the data of TikTok’s American users.
As the complaint states, it’s true that the Trump administration has failed to provide concrete evidence of American user data falling into the hands of the Chinese government — but that doesn’t mean it’s impossible. And in fact, that possibility seems incredibly likely given ByteDance’s checkered past of caving to CCP pressure. ByteDance’s vice president is a party member, and the company hosts an Internal Party Committee that studies the key texts of the CCP’s ideology. And in 2018, ByteDance CEO Zhang Yiming wrote a public apology letter after another one of his apps faced public criticism for not adhering closely enough with the Party. (And this is to say nothing of ByteDance’s cooperation with the CCP on Xinjiang-related propaganda and censorship on Douyin, its censored TikTok-like product for China.)
So perhaps it’s true that the U.S.-based employees who run TikTok in the United States do not intend to hand over American user data to Beijing, and perhaps it’s also true that TikTok would never directly do that. But how can one reasonably believe that ByteDance’s ownership of TikTok doesn’t prove a potential conduit for heavy-handed interference by Beijing? The very foundations of TikTok’s complaint — which support its contention that the president has illegitimately targeted the app on national-security grounds — skirt some important facts.
The complaint also places the TikTok ban order in the context of Trump’s reelection campaign, alleging that “the president’s actions clearly reflect a political decision to campaign on an anti-China platform.” It’s difficult to see how this will play out in court; this claim appears not to be relevant to any of the counts on which the complaint rests. Nonetheless, it demonstrates the disingenuous quality of TikTok’s talking points, but also that Trump has (at least slightly) weakened the argument for an otherwise justifiable executive order.
TikTok asserts in the complaint that Trump’s rhetoric on China proves that the executive order in question was issued for political reasons. The complaint veers into a discussion of his use of the terms Wuhan virus, China virus, and Kung flu to blame China for the pandemic. Even granting that some of the president’s comments here have been counterproductive, what does this actually say about Trump’s potential ban on TikTok?
According to the TikTok legal team, it plays into other moves by the president. The complaint describes how Trump’s campaign ran ads about banning TikTok and that the executive order followed an effort by young TikTok users to reserve tickets for a rally in June that they had no intention of attending, to inflate the campaign’s attendance estimates. The decision to run ads that politicize the TikTok issue certainly does reek of political opportunism. This was an ill-considered move on the part of the Trump campaign, but it does not invalidate the administration’s national-security concerns. For that matter, neither do Trump’s repeated (albeit unadvisable) assertions that the parties to a TikTok acquisition deal should pay the Treasury.
For all of the president’s missteps, TikTok seems to be guilty of suggesting irresponsible theories. Its insinuation in the complaint that the Tulsa rally ticket fiasco (the campaign failed to fill a stadium in the city after boasting of huge expected crowd sizes) also could have played into the decision to issue the order echoes the conspiracy theorizing offered by Vogue’s Stuart Emmrich. He wrote a piece giving credence to the theory that Trump has sought to ban TikTok because of the Tulsa incident and comedian Sarah Cooper’s videos mocking Trump on the platform.
In fact, the complaint seems to be riddled with disingenuous claims. It cites the American Enterprise Institute’s Derek Scissors, a self-proclaimed “China hawk,” as condemning the government review process that resulted in the forced sell-off of TikTok for its “chaos” and “politicization.” But that’s not actually what he said — in a post for AEI on Tuesday, he wrote of the complaint, “This is incompetently written and misleading at best, dishonest at worst.” At the core of Scissors’s criticism? He never said what the complaint claims that he said. The remarks attributed to him were the words of an author quoting him in an article.
All of this is to say that TikTok’s complaint is nothing new. We’ll see if the company gets temporary injunctive relief, but it’s peddling the same dubious claims it has been making for months.