September 28, 2020 | technology | No Comments
President Trump potentially breached legal authority by issuing an emergency order to remove TikTok from U.S. app stores, according to a federal judge that granted an injunction against the directive on Sunday.
U.S. District Court Judge Carl Nichols of the District of Columbia in an opinion released on Monday said Trump “likely exceeded the lawful bounds” of the International Emergency Economic Powers Act, reports Variety. A day earlier, Nichols granted an injunction to halt the impending ban.
The IEEPA allows the president to deem an entity “an unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States.” Designed solely for emergency action, the act provides authority to freeze assets and circumvent transactions related to the threatening agency.
As Nichols notes, however, there are two exceptions to the IEEPA and both apply to TikTok. The law does not allow for the regulation or prohibition of “the importation or exportation of information or informational materials'” or “personal communication[s], which do not involve a transfer of anything of value,” the report said, citing Nichols.
In its emergency request for an injunction, TikTok aligned its operation with the exclusionary language by comparing itself to a “news wire feed.” Nichols agreed and in his opinion wrote that a ban would “indirectly’ regulate’ the transmission of informational materials’ by U.S. persons.”
“To be sure, the ultimate purpose of those prohibitions is to protect the national security by preventing China from accessing that data and skewing content on TikTok,” Nichols said. “But Plaintiffs have demonstrated that they are likely to succeed on their claim that the prohibitions constitute indirect regulations of personal communication[s]’ or the exchange of information or informational materials.'”
Further, the jurist questioned the Trump administration’s characterization of the Chinese-owned TikTok. The government “has provided ample evidence that China presents a significant national security threat, although the specific evidence of the threat posed by Plaintiffs, as well as whether the prohibitions are the only effective way to address that threat, remains less substantial,” Nichols wrote, according to the report.
The Commerce Department in September announced the app would be pulled from app stores like Apple’s App Store and Google’s Play Store on Sept. 20. A more comprehensive ban set for Nov. 12 will prohibit American internet carriers from handling TikTok’s traffic, rendering the app useless. Sunday’s injunction offers TikTok a reprieve until the November action deadline.
To avoid a shutdown, TikTok owner ByteDance has been seeking a buyer for its U.S. operations in compliance with the Trump administration’s demands. A tentative arrangement with Oracle and a host of financial partners was reached on Sept. 17, though the deal has not been finalized.