TikTok sued the Trump administration Monday in response to what it said is a “heavily politicized” executive order that seeks to ban the short-form video app from the United States.
The suit marks a major escalation in the fight between President Donald Trump and the wildly popular TikTok, which has 100 million users in the US and is owned by a Chinese company, ByteDance.
TikTok argued in California federal court that the administration did not give the company a fair chance to defend itself from allegations that it poses a national security risk. And it claimed Trump’s executive order illegally rests on emergency powers law in ways that do not apply to TikTok.
“We far prefer constructive dialogue over litigation,” TikTok said in a blog post announcing the case. “But with the Executive Order threatening to bring a ban on our US operations — eliminating the creation of 10,000 American jobs and irreparably harming the millions of Americans who turn to this app for entertainment, connection, and legitimate livelihoods that are vital especially during the pandemic — we simply have no choice.”
TikTok’s legal challenge reflects a high-stakes, last-ditch effort to prevent a looming ban by the Trump administration, which gave the company until Sept. 20 to address concerns that the app could “allow the Chinese Communist Party access to Americans’ personal and proprietary information — potentially allowing China to track the locations of Federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage.”
TikTok has previously said that it stores data on its US users in the United States and in Singapore, and that it would refuse any request by the Chinese government for US user data.
Since then, TikTok has explored selling its US business to Microsoft, and reportedly to Oracle as well. But with the suit, TikTok is going on the offensive — challenging what it said is an unlawful executive order and a hastily completed national security review.
TikTok’s complaint, which was filed in the US District Court for the Central District of California, argued that the Trump administration ignored evidence TikTok presented to US national security investigators and that its order is part of a campaign to discredit China for Trump’s own political gain.
The complaint cited Trump’s anti-China rhetoric, including his repeated references to the novel coronavirus as the “China virus” and “Kung flu.”
“The President’s actions clearly reflect a political decision to campaign on an anti-China platform,” TikTok’s complaint said.
For weeks, the Commitee on Foreign Investment in the United States has been analyzing TikTok and its potential risk to US security. In its blog post, TikTok alleged that CFIUS “rushed out its decision within five minutes of its deadline” concluding that it had identified national security risks in TikTok.
“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,” TikTok’s complaint said.
TikTok also claimed that Trump’s justification for his executive order relies on the same emergency powers law that he cited in an earlier executive order targeting Huawei, the Chinese telecommunications giant. But Tiktok is nothing like Huawei, the company argued.
“TikTok Inc. is not a telecommunications provider and it does not provide the types of technology and services contemplated by the 2019 executive order,” the complaint said.
However, Trump’s 2019 order does not refer to telecommunications providers, only to the “information and communications technology and services supply chain.”
Robert Chesney, a professor in national security law at the University of Texas-Austin, said TikTok’s odds of success are not high on its due process argument — though it may still be able to use the legal challenge to create delays in the ban.
“Getting the litigation delayed long enough so Joe Biden wins [the election] could be their whole game,” Chesney said. But, he added: “I think it’s unlikely the delay strategy achieves anything. I don’t think Joe Biden will retract the executive order. They will be plenty hawkish on China.”
— CNN’s Selina Wang contributed reporting.
Article updated: 8/24/20 10:54 A.M.