Trump’s Executive Order Banning TikTok Unlawful, Unconstitutional: Complaint

Trump acted unlawfully when his Aug. 6 EO invoked the International Emergency Economic Powers Act to ban TikTok from doing business in the U.S. on national security grounds, alleged the company and its ByteDance parent Monday in U.S. District Court in Los Angeles. His actions were “for political reasons rather than because of an ‘unusual and extraordinary threat’” to the U.S., as the IEEPA requires, said the complaint (in Pacer).

TikTok is making a “rational argument” that the powers Trump is trying to invoke aren’t warranted because the company doesn’t pose an extraordinary or unusual threat, said University of New Haven associate professor of national security Robert Sanders in an interview. Facebook and Fitbit have posed similar national security threats involving service members, he noted: Both platforms have exposed military users to privacy and strategic threats regarding personal and location information. Sanders warned against banning foreign competitors and promoting a made-by-America “syndrome” the global economy doesn’t support.

The EO raises significant legal and constitutional issues, said Electronic Frontier Foundation General Counsel Kurt Opsahl. He cited a 1994 amendment to the IEEPA, which the EO cites, that removed the ability to use the act to regulate or prohibit communications or information. A TikTok ban or regulating how people use TikTok “would be outside the authority the IEEPA allows for,” he said. Banning user communications on an app raises First Amendment issues, Opsahl added: “This is not to say we don’t care about the security concerns with TikTok. TikTok needs to do a lot to improve security, but that doesn’t justify” a ban. “It’s a pretty disturbing thing that the president might ban a means of communications without clear legal authority or without constitutional problems.”

The president has statutory authority over foreign trade and relations, the ability to impose tariffs and the ability to exclude certain commercial activity from the U.S., said Constantine Cannon antitrust attorney Ankur Kapoor. Absent a violation of criminal, civil and antitrust law, the president couldn’t take the same action against an American company, he said. He noted TikTok has developed into a competitor of U.S. social media companies. It obtained user scale, the most significant barrier to entry, fairly quickly, he said: Instagram did the same thing with about a dozen employees, going from zero to about 30 million users within a year.

Around 100 million Americans use TikTok, and the company employs more than 1,500 U.S. employees, the company said. It has acted to protect the privacy of U.S. data by storing it in the U.S. and Singapore instead of in China, and by creating “software barriers” to keep it separate from ByteDance products, it said. TikTok’s CEO, global chief security officer and general counsel are Americans based in the U.S. and aren’t subject to Chinese law, and the content moderation team operates independently from China, it added.

The EO seeks to ban TikTok “purportedly because of the speculative possibility” that the app could be “manipulated by the Chinese government,” said the complaint. But the Trump administration is “well aware” TikTok and ByteDance “have taken extraordinary measures to protect the privacy and security of TikTok’s U.S. user data,” it said. The complaint seeks an injunction to prevent the administration from “impermissibly banning” TikTok. It also seeks a declaratory judgment that the EO is unlawful and unconstitutional.

The order ignored “these demonstrable facts and commitments,” said TikTok’s complaint. “It is revealing that the President’s order took no account of the national security review process involving the Committee on Foreign Investment in the United States,” it said. The CFIUS review “was still pending at the time of the executive order,” it said. The EO instead “was issued abruptly” after Trump “proclaimed in a campaign-style news conference” that TikTok had “no rights” and that he would ban the company and its parent company if they didn’t pay into the Treasury “to secure the U.S. government’s approval for any sale,” it said.

The EO is unconstitutional because it violates the due process protections of the Fifth Amendment, said the complaint. The order also is “ultra vires” (beyond legal authority) and wasn't based on “a bona fide national emergency,” it said. The order also is invalid because its prohibitions “sweep broadly to prohibit any transactions with ByteDance, although the purported threat justifying the order is limited to TikTok, just one of ByteDance’s businesses,” it said.