Lawsuit challenges TikTok ban

TikTok filed a legal challenge on Monday against an order from the administration of US President Donald Trump to ban the popular video-sharing app in the US, arguing it violates constitutional rights to due process and free speech.

"We do not take suing the government lightly; however, we feel we have no choice but to take action to protect our rights, and the rights of our community and employees," said TikTok, which is owned by Chinese company ByteDance, in a blog post on Monday.

The lawsuit, filed in federal court for the Central District of California, argues that Trump's executive order violates the due process protections of the Fifth Amendment "by banning TikTok with no notice or opportunity to be heard".

The order "is not based on a bona fide national emergency and authorizes the prohibition of activities that have not been found to pose an unusual and extraordinary threat", TikTok's lawyers said in the complaint.

The president and some Republican lawmakers have raised national security concerns that TikTok could share US users' data with the Chinese government. On Aug 6, Trump issued the first of two executive orders against TikTok, banning US transactions with ByteDance if it's not sold to a new owner within 45 days.

The order, taking effect on Sept 20, draws legal authority from the International Emergency Economic Powers Act, which allows the president to regulate economic transactions in a national emergency. Past administrations have used it for a range of issues, including terrorism and drug trafficking, but have never used it against a global technology company.

A week later, Trump issued a second executive order, giving Byte-Dance 90 days to divest its 2017 acquisition of a Chinese-based app Musical.ly, which later merged with TikTok. Monday's lawsuit challenges only the Aug 6 executive order, which takes effect on Nov 12.

TikTok said in the lawsuit that the process of identifying national security risks arising from the acquisition of Musical.ly was "principally based on outdated news articles" and did not address "the voluminous documentation" provided by TikTok demonstrating the security of user data. The company said it had taken "extraordinary measures to protect the privacy and security of TikTok's US user data", which included storing US users' data outside China on servers in the US and Singapore.

It also had erected "software barriers" that stored US user data separately from the data kept on other products and companies owned by ByteDance, according to the complaint.

TikTok also alleges the executive order violates the First Amendment rights "in its code, an expressive means of communication" and restricts "TikTok Inc's speech for both functional and content-based reasons".

The American Civil Liberties Union, or ACLU, also noted that Trump's twin orders on Aug 6 to ban TikTok and Chinese social media app WeChat violate the First Amendment for users while doing little to protect personal data from abuse.

With no specific and direct evidence of harm from those two apps, Trump's orders are an abuse of emergency powers under the pretense of national security, "to score political points, serve his xenophobic and racist agenda, and spread fear and uncertainty", said the organization in an article on its website.

TikTok said in the complaint: "The background and timing of the executive order plainly suggest that it was designed not for a bona fide national security reason but instead to further the president's anti-China political campaign."

Trump also has suggested that parties to the potential sale should pay a fee to the US government for facilitating the deal. In the lawsuit, TikTok said: "The President's demands for payments have no relationship to any conceivable national security concern."

No privacy concerns

The argument is echoed by the ACLU.

"Privacy concerns are not the motivating factor behind the bans," said the organization. "In fact, the data TikTok and WeChat collect does not appear substantially different from the kinds of data other foreign companies or American companies like Facebook or Google collect. And Trump has made no attempt to address privacy invasions caused by these companies operating in the United States."

Joseph Steinberg, a cybersecurity expert, also noted in a blog that "the type of data that Facebook gathers likely gives it far more detailed intelligence about its users than TikTok ever could assemble with its current platform".

TikTok's rapid success in the US has made it the biggest threat to Facebook's dominance of social media, which has recently closed a TikTok-like app, Lasso, and launched another clone app, Reels.

Facebook CEO Mark Zuckerberg has stoked Washington's fears about TikTok through personal outreach and public statements, according to a Wall Street Journal article citing sources familiar with the matter.

His arguments about TikTok show a reversal in his stance on China. In 2010, he said he was planning to learn Mandarin and he made several well-publicized trips to China. Since last year, he has publicly warned that TikTok poses a direct threat to US technology, a theme he reiterated at an antitrust hearing on Capitol Hill last month.

Zuckerberg also made the case to Trump in a private dinner late October that the rise of Chinese internet companies threatens US business. After Zuckerberg's meetings with several senators in October, the senators wrote to intelligence officials demanding an inquiry into TikTok, and the government began a national security review of the company soon after, according to The Wall Street Journal.

"In terms of Facebook's lobbying efforts to ban TikTok, I think that's very easily understood," said Gary Rieschel, a Seattle-based venture capitalist.

"How much of that is being done, how much money they're spending, I would have no idea. But I think we're all a little naive about what actually goes on in the background of things."

While much has been said of what's good for the US, it's "clearly good for Facebook if TikTok is banned in the US", Rieschel said.