Katherine Webster  |  August 25, 2020

Category: Legal News

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A person downloads visits TikTok on a smartphone app store - TikTok app

 

TikTok is suing the U.S. government, accusing President Donald Trump’s administration of banning the app for political reasons.

In issuing the TikTok app ban via executive order, the Trump administration cited “credible evidence” showing the app poses national security concerns because it is owned by ByteDance, a Chinese company.

The executive order would make business transactions between the TikTok app and any U.S. citizen a crime, NPR reported

The order is set to go into effect 45 days from its signing on Aug. 6, according to NPR, and would likely mean Apple and Google would have to remove the TikTok app from their app stores.

TikTok alleges Trump’s executive order violates the Due Process Clause of the Fifth Amendment because it deprives TikTok and ByteDance of their property rights by allowing the Secretary of Commerce to prohibit “any transaction” between any person and the companies or their subsidiaries.

“Although the exact breadth of Plaintiffs’ deprivation will remain uncertain until Defendants define the covered transactions on September 20, 2020, the order plainly contemplates a profound deprivation of Plaintiffs’ property rights, regardless of how broadly or narrowly Defendants choose to implement it,” the lawsuit states.

The plaintiffs also maintain that the order failed “to identify any actual threat” to national security posed by the TikTok app.

The order alleges that TikTok engages in data collection that could allow China to use data about U.S. users “for nefarious purposes,” censors content and “may be used for disinformation campaigns.”

The TikTok app ban lawsuit calls these assertions speculative and says they are made “without any evidentiary foundation.”

The assertions “do not constitute a bona fide national emergency,” the lawsuit says. 

ByteDance sign - TikTok appTikTok alleges the executive order violates the International Emergency Economic Powers Act (IEEPA) in several ways, including a breach of the Non-Delegation Doctrine.

The company says the executive order is ambiguous and “highlights that the President’s ability to invoke a national emergency under IEEPA is so open-ended that Congress has not supplied an ‘intelligible principle’ to guide Executive Branch decision-making authority.”

According to a New York Times report, U.S.-China relations have soured recently, and as part of the president’s effort to show he’s tough on China, Trump’s advisers have focused on technology companies such as Byte Dance and Huawei that say they are beholden to China’s security laws.

However, TikTok says it has security measures in place to protect users’ data.

The company says U.S. user data such as names, birth dates, addresses, phone numbers, passwords and other information is encrypted using a standard key management service (KMS) encryption algorithm operated by the app’s U.S. security team. 

According to the TikTok ban lawsuit, the KMS algorithm generates “secret keys” that are required to access encrypted data, and those keys are also managed by the U.S. security team.

“China-based engineering personnel supporting TikTok may access these encrypted data elements in decrypted form based on demonstrated need and if they receive permission under the Data Access Approval Process, which is managed by TikTok’s U.S.-based team,” the lawsuit states.

TikTok says internal controls are in place to prevent ByteDance personnel from accessing decrypted U.S. data without authorization from the U.S. security team, and the company conducts “code audits and internal reviews of access to data” to ensure no one without authorization accesses the U.S. user data.

This review process “has not identified any purposeful breach of security controls,” according to the lawsuit.

In addition, TikTok says it takes measures to ensure user data is secure and encrypted as it is transmitted, using a default hypertext transfer protocol secure (HTTPS); this same protocol is used by major U.S. banks and e-commerce sites.

“The President’s actions clearly reflect a political decision to campaign on an anti-China platform,” TikTok says in its lawsuit.

TikTok and ByteDance are asking the Court for a declaratory judgment that Trump’s Aug. 6 executive order regarding the app is unlawful and unconstitutional; an order invalidating the executive order; to stop the government from implementing or enforcing the executive order and to preserve the status quo; and to provide any further relief the Court deems proper. 

Do you think a TikTok app ban in the U.S. is appropriate? Let us know in the comments.

The plaintiffs are represented by Beth S. Brinkmann, Alexander A. Berengaut, Megan C. Keenan, John E. Hall, Anders Linderot, Mitchell A. Kamin and Benjamin G. Cain of Covington & Burling LLP.

The TikTok App Ban Lawsuit is TikTok Inc., et al. v. Donald J. Trump, et al., Case No. 2:20-cv-7672, in the U.S. District Court for the Central District of California, Western Division.

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4 thoughts onTikTok Sues Trump Administration In Effort to Block U.S. Ban

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