Why a D.C. Judge Sided with TikTok

In blocking the Trump administration’s move to shut TikTok out of U.S. app stores, a federal judge in Washington, D.C., rejected a broad assertion of presidential power by the U.S. Justice Department while acknowledging the potential national security risks posed by the wildly popular Chinese-owned video app.

U.S. District Judge Carl Nichols, the most recent Trump appointee to federal trial court in Washington, handed down a preliminary injunction Sunday that prevents the administration from going through with the ban, which had been set to take effect at midnight. On Monday, Nichols unsealed his full opinion, providing the legal reasoning behind the reprieve from Trump’s bid to ban the viral video app.

The ban was among a broader set of restrictions, most set to take effect in November, responding to concerns that TikTok could send the personal data of millions back to authorities in China. TikTok, owned by the Chinese company ByteDance, claims to have more than 120 million users in the United States.

In an 18-page opinion, Nichols found that TikTok was likely to prevail in arguing that the Trump administration had overstepped in pushing to prevent future downloads of the app. At issue was the International Emergency Economic Powers Act (IEEPA), under which the Trump administration claimed authority to force TikTok off of app stores, including those run by Apple and Google.

Nichols sided with TikTok’s argument that it was covered by carve-outs in that law which prevent the president from “directly or indirectly” prohibiting the flow of information or “personal communications” that don’t involve a transfer of anything with value. In arguments leading up to a rare telephonic hearing on Sunday morning, the Justice Department argued the administration was addressing only “business-to-business economic transactions” in targeting TikTok’s access to U.S. app stores.

Nichols, in his unsealed opinion, said, “That argument fails to grapple with IEEPA’s text” and ruled that the Trump administration’s order likely amounted to the kind of indirect regulation prohibited under the emergency powers statute.

“And the purpose and effect of the secretary’s prohibitions is to limit, and ultimately reduce to zero, the number of U.S. users who can comment on the platform and have their personal data on TikTok,” he wrote, referring to Commerce Secretary Wilbur Ross. “At a minimum, then, the secretary’s prohibitions ‘indirectly’ ‘regulate’ the transmission of ‘informational materials’ by U.S. persons.”

The Justice Department had argued TikTok could not benefit from the law’s exemptions because some of the communications on the app have economic value. With a conversational tone, Nichols conceded that point—but only briefly.

“Fair enough. But ‘a wide swath of TikTok videos, public comments, … and private messages between friends about TikTok videos [are] personal communications with no economic value at all,’” he said, quoting from a brief TikTok’s lawyers filed Saturday.

Nichols also dismissed what he called a “novel reading” of the Espionage Act, a law that authorizes life imprisonment and even the death penalty for those who share defense secrets with foreign adversaries. The judge appeared reluctant to extend the law to an app where users traffic in largely frivolous videos, saying “it is not plausible that the films, photos, art, or even personal information U.S. users share on TikTok fall within the plain meaning of the Espionage Act.”

Outside of court, TikTok has been in talks to forge a deal with a U.S. company to help extinguish national security concerns. TikTok reached a deal earlier this month with Oracle and Walmart to create a new entity, to be called TikTok Global. Trump gave the deal a preliminary blessing. But the companies have since tangled over how much of TikTok Global would be owned by the American entities.

Trump has since said that he might block the deal if American companies did not have more control of TikTok.

“If we find that they don’t have total control, then we’re not going to approve the deal,” Trump said Monday on “Fox & Friends.”

From: The National Law Journal