Judge Rejected Ban On TikTok Because Trump's DOJ Can't Show Any Real National Security Threat
from the because-of-course dept
Earlier today we wrote about a judge blocking Trump’s TikTok ban, though noting that the full reasoning why was under seal. Right about the time that post went up, the details were unsealed. Unlike the WeChat injunction which was done on 1st Amendment grounds, the injunction here doesn’t touch the 1st Amendment questions and just says that the Trump White House (even with presenting evidence under seal) totally failed to substantiate the national security threat of TikTok, even under the IEEPA (International Emergency Economic Powers Act) which grants the President tragically and dangerously broad powers to claim a “national emergency” to block international commerce.
As noted above, IEEPA contains a broad grant of authority to declare national emergencies and to prohibit certain transactions with foreign countries or foreign nationals that pose risks to the national security of the United States. But IEEPA also contains two express limitations relevant here: the ?authority granted to the President . . . does not include the authority to regulate or prohibit, directly or indirectly? either (a) the importation or exportation of ?information or informational materials?; or (b) ?personal communication[s], which do not involve a transfer of anything of value.?
We pointed out this clause when Trump’s executive order was first issued, noting that it likely doomed it, so it’s good to see the judge highlight it. The DOJ pushed back on this, saying that since it was just prohibiting certain “business-to-business economic transactions,” it wasn’t actually prohibiting the movement of information. Incredibly the DOJ also claimed it had not taken any action concerning “TikTok users themselves.” The judge more or less responds with a sarcastic “come on, you can’t be serious.”
But that argument fails to grapple with IEEPA?s text. Section 1702(b)(3) provides that IEEPA?s grant of authority ?does not include the authority to regulate or prohibit, directly or indirectly,? the cross-border transmission of ?information and informational materials.?… The content exchanged by TikTok users constitutes ?information and informational materials?; indeed, much of that content appears to be (or to be analogous to) ?publications, films, . . . photographs, . . . artworks, . . . and news wire feeds.? Id. 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…. At a minimum, then, the Secretary?s prohibitions ?indirectly? ?regulate? the transmission of ?informational materials? by U.S. persons.
Moreover, Section 1702(b)(3)?s express limitation applies to ?commercial? informational materials. If prohibitions on business-to-business transactions could not constitute the regulation of ?informational materials,? then there would have been no reason for Congress to include the word ?commercial? when defining the scope of § 1702(b)(3)?s limitation…..
To be sure, TikTok (like a news wire, which is expressly identified in IEEPA?s carveout) is primarily a conduit of ?informational materials.? In that sense, it is (among other things) a ?medium of transmission,? and IEEPA provides that this carveout applies ?regardless of format or medium of transmission.? 50 U.S.C. § 1702(b)(3). That is especially true where, as here, the transmitting medium is inextricably bound up with and exists primarily to share protected informational materials.
From there, the DOJ tried to argue that the Espionage Act (which I and many others believe is already unconstitutional) when combined with the IEEPA can be used to block certain information under the IEEPA. But again, the judge says that’s not how any of this works, especially because kids dancing on TikTok are not violating the Espionage Act.
Finally, the government proposes a novel reading of the Espionage Act…. Section 1702(b)(3) contains an exception to its exception, so to speak, and permits the regulation of informational materials, ?with respect to . . .acts . . . prohibited by chapter 37 of Title 18.? That Title authorizes life imprisonment or the death penalty for those who share U.S. defense secrets (especially classified government materials) with foreign adversaries…. But 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.
At the end of the order, the Court also addresses the national security question while looking at the “balance of equities” in determining whether or not an injunction against the ban was appropriate. And it notes that, despite the DOJ presenting evidence in sealed filings, it wasn’t enough to substantiate the claims that TikTok is a national security threat.
The government argues that a preliminary injunction would displace and frustrate the President?s decision on how to best address a national security threat?an area where the courts typically defer to the President?s judgment…. The Court must, of course, give deference to the Executive Branch?s ?evaluation of the facts? and the ?sensitive and weighty interests of national security and foreign affairs,? Holder v. Humanitarian Law Project, 561 U.S. 1, 33?34 (2010), including ?the timing of those . . . decisions.? Holy Land Found. for Relief & Dev. v. Ashcroft, 219 F. Supp. 2d 57, 74 n.28 (D.D.C. 2002). Here, 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.
As for why the court only granted the injunction for last night’s ban, and not the November 12th more complete ban, the court basically says “we have time to deal with that one later,” but presents no suggestion that it would allow that ban to move forward either.
… the only truly imminent and immediate harm that Plaintiffs will suffer absent an injunction relates to paragraph 1 of the Commerce Identification. The Court therefore agrees with the government that injunctive relief should be limited to the prohibitions contained in paragraph 1, and that the other paragraphs of the Commerce Identification should appropriately be the subject of separate proceedings, which can be briefed and decided (potentially through cross-motions for summary judgment, and on a full administrative record) prior to those restrictions? effective date of November 12.
So, the WeChat ban gets blocked on 1st Amendment grounds, and the TikTok ban gets blocked because the IEEPA doesn’t let the President do what he wants to do, and all of this is just performative nonsense anyway, wasting two separate courtrooms’ time, not to mention significant concerns among many different companies which would have had to deal with the fallout of a ban. All because Trump is mad at kids on TikTok who don’t like him.
Still, it does seem notable that even under seal that government couldn’t present any real evidence to the court of the threat of TikTok being owned by a Chinese firm. As if we didn’t already have enough evidence about the fact that this entire debacle was a made up culture war, rather than a serious concern. It remains incredible to me that otherwise serious people jumped on board with Trump’s decision to ban these apps.