It looks like I'm not the only one who chose the recent Executive Order banning TiKTok. Luckily I think we both chose different questions and aspects of the issue to review. This blog will focus on the complaint that TikTok and its parent company, ByteDance, filed as a result of President Trump’s August 6th Executive Order [1]
A little background - We’ve all heard of TikTok by now, the popular video-sharing app that reached 1 billion users in just two years after its global launch [2]. TikTok initially attracted a younger audience by marketing ‘real’ videos and authentic content. The platform may have less features than its competitors, Instagram, Facebook or Vine, however it seems to make up for that by keeping advertising to a minimum. Although it started off with a very teen-only feel, adults and ‘influencers’ are finding their way onto this new platform as well. In August the tech giant released new data around it’s user count, stating that there were currently 91 million active monthly users in the U.S. alone [3].
TikTok’s headquarters are based in California and its global parent company, ByteDance, has offices in the U.S., China, Singapore, among others [4]. The tension between the U.S. and this tech giant culminated on August 6th when President Trump issued an Executive Order [5] under the International Emergency Economic Powers Act (IEEPA) barring people and property within U.S. jurisdiction from carrying out “transactions” with TikTok [6]. United States Secretary of Commerce, Wilbur Ross, published a press release shortly after commenting on the President’s actions; “At the President’s direction, we have taken significant action to combat China’s malicious collection of American citizens’ personal data, while promoting our national values, democratic rules-based norms, and aggressive enforcement of U.S. laws and regulations [7].”
The actions Secretary Ross was referring to include steps taken by the Commerce Department to prohibit a long list of transactions, designed to effectively ‘disable’ TikTok from doing business in the U.S. Consequently, the ban will also sever the company’s ability to pay their U.S. employees, leading to a backlash and criticism that the President violated the due process protections of the Fifth Amendment by not allowing TikTok the ability to defend itself in court.
As a result, on August 24th TikTok and ByteDance filed a lawsuit against President Trump, Secretary Wilbur Ross, and the Department of Commerce, alleging the Executive Order banned the information sharing platform without affording its owners TikTok Inc. and ByteDance Ltd.due process of law and for political reasons rather than because of an “unusual and extraordinary threat.” [8].
Questions
The aspect of this legal issue that I want to focus on is around the complaint that TikTok and ByteDance filed in response to President Trump’s Executive Order.
The plaintiffs claim that the Executive Order violated their due process rights for not affording them an opportunity to defend themselves in court, but the President justified his actions under the IEEPA by claiming TikTok was a threat to national security. Do you think the Executive Order was authorized correctly under IEEPA powers or did the Order circumvent Constitutional rights to due process?
In general, what did you think about the length & tone of the complaint itself (Ex. paragraph 60, pg. 21)? Do you think that the plaintiff’s lawyer might have done it that way to appeal to a younger demographic in the complaint? Why or why not? What affirmative defenses do you think the defendants might raise in their answer?
Sources
[1] https://www.whitehouse.gov/presidential-actions/executive-order-addressing-threat-posed-tiktok/
[2] https://wp.nyu.edu/dispatch/2020/02/20/instagram-vs-tiktok-the-battle-between-social-media-platforms
[3]https://www.cnbc.com/2020/08/24/tiktok-reveals-us-global-user-growth-numbers-for-first-time.html
[4]https://www.politico.com/f/?id=00000174-2162-d006-a7f4-e16fa0dd0000
[5]https://www.whitehouse.gov/presidential-actions/executive-order-addressing-threat-posed-tiktok/
[6] https://www.nytimes.com/2020/08/06/technology/trump-wechat-tiktok-china.html
[8]https://www.politico.com/f/?id=00000174-2162-d006-a7f4-e16fa0dd0000
I think the emergency powers used here are just that powers to address an emergency. A power that allows the President to address an urgent or emergent issue that needs an immediately responsive to stop additional harm. The emergency must a threat from outside of the United States and in the past, this has been used against terrorist or to stop the sale of nuclear weapons. This one seems to be more of a stretch and vaguely defined. What is the specific threat? Why such a small focus on two companies for a National Emergency where there are hundreds of Chinese companies collecting US citizen data to day? Past orders have blocked companies from doing business or transferring materials or data to another company. Could the intent of the order have been better served if the order said that no US citizen data can be provided to a location where the Chinese’s information sharing law allows the Chinese government access to the data?
ReplyDeleteOn the due process question, I looked at past orders based on national emergencies and did not see where any of them received any of the due process steps before the order was in place but may have receive their due process after. I also think this issue could have a better result if handled legislatively? Paragraph 60 is just odd, asking for a commission on the forced sale of a company you are forcing out of business.
I agree, that this does not seem to fall under the scope of a national emergency. I wonder if there is some classified information we are not privy to. It seem like a pretty extreme measure.
DeleteYeah, that's an interesting point. I have seen some later updates about this, the other blog talks about it too, how a judge just issued an injunction to put a hold on the Executive Order. So the way the Executive Branch responds over the next few months will be very interesting.
DeleteRegarding your points on Emergency powers, I had many of the same conclusions and I was surprised that the President could use the IEEPA to enforce a domestic ban on a social media company. A couple other points brought up in the complaint was TikTok said they tried to engage with the government for a year leading up to the ban but was largely ignored. It is also interesting that Trump is now allowing Microsoft to buy TiKTok from BiteDance but has insisted that the Department of Treasury gets cut for making the purchase possible.
ReplyDeleteOn paragraph 60 – I agree, it’s a worded weird. I found other examples like that throughout the complaint.
Q1--I do think the order was correctly issued. When you are in national security game, even unintendedly, there are going to be connections that can be made that may pose a risk to national security. I did some research on cases that were ruled in favor of the US due to reasons that could not be divulged. The cases (https://prospect.org/world/secret-justice-national-security-trumps-citizen-rights/) were not allowed to go to trial. One case (Malerio v. FBI) involved alleged denial of first amendment rights and the FBI. The case was dismissed, went to appellate court and then Judge Scalia upheld the trial courts ruling. The article mentions that each case involved a secret testimony that only the judge and the defense were privileged to. I didn’t find any mention of that in the case, but it was upheld by Scalia for other reasons. My reading did lead me to a “states secrets privilege” that the Government may invoke. This is invoked when the defense requires disclosing information that would adversely affect national security. This privilege also covers disclosing of method the US uses to spy.
ReplyDeleteIf the Government can connect states secrets to Chinese methods and US methods to gather intelligence the order will hold.
Q2—I felt I was reading repetitive whining. After we were taught the complaint should be short, then read THIS!
Q3—I don’t what the lawyers approach was? Maybe felt that a simple claim would be seen as too weak.
Q4—I see the Government invoking the states secrets privilege with a motion for summary judgement. In addition, I think this is a strategy to keep a LARGE amount of Tik Tok users/voters to be swayed.
Interesting perspective on Q1. I guess we’ll never know if there was a more significant threat that the government isn’t sharing with us but if there was, I agree that could be a viable reason why the case wasn’t brought to court.
DeleteOn Q2 & Q3 - Right? Super long complaint - I thought maybe the lawyer did that on purpose because it was public and wanted to generate support from a younger audience. Get it to go 'viral' or something.
On Q4 - Agreed, or maybe a motion to dismiss on the grounds that there is no case or it's moot? I could see the a lawyer arguing that there is no controversy because it was already settled by the Executive Order.
I thought pages 22-26 of the complaint seemed very political and almost like something out of a tabloid. Very speculatory with some quotes mixed in with a timeline. I don’t see how this information is tied to the constitution. I feel it may have been put in there to spark attention from the younger demographic. It is easy to read the allegations, so it may be more appealing to young readers. Perhaps they were using their freedom of speech in this section. I don’t believe there are merits to this case in this section. I would think the defendants would make a motion to strike for “redundant, immaterial, impertinent, or scandalous matter.”
ReplyDeleteI think that the President used his position to ban TikTok and implement a deadline for it to be banned. I did appreciate being able to recognize subject matter jurisdiction and venue on page 4.
Regarding the language in the complaint - that's what I thought too. The language was really informal at times, almost like it was written to be quoted on Twitter or used for headlines. And I also thought maybe it was done that way on purpose to be appealing to younger readers...I guess that makes sense given TikTok's main audience.
ReplyDeleteDo you think the Executive Order was authorized correctly under IEEPA powers or did the Order circumvent Constitutional rights to due process?
ReplyDeleteThe IIEPA is a federal law that authorizes the president to regulate international commerce after declaring a national emergency. It can authorize blocking any transaction like the downloading of an application.
The question Is what makes a situation a national emergency so the president can use this federal law? This is what has been very difficult to pinpoint. A national emergency is left up to the discrediting of the president. It can be any national crisis that threatens the country or could potentially threaten the country. The president should justify the national emergency with an existing law.
I think the language in both national emergency and IEEPA are very broad and do not give specific implication what it can be used for. I think this has been done on purpose to allow the president to use their discretion.
The complaint itself has a specific audience in mind which is the younger audience. I do think this was done on purpose to try to get more of their audience on board with what they are claiming.