Justice Department lawyers argued in a federal court filing Thursday that TikTok's explosive growth and its relationship to the Chinese Communist Party made the popular social media app "a direct threat to the privacy and security of U.S. persons."
The U.S. Department of Justice filing is in response to a request by one of TikTok's U.S.-based employees for a judge to pause President Trump's ordered ban on TikTok, which would take effect on Sept. 21. The filing is a first look at the U.S. government's arguments against TikTok and its employee's efforts to push back on the ban.
TikTok has found itself in the Trump administration's line of fire over concerns that its China-based parent company, ByteDance Ltd., is sharing the popular app's data with the communist government. On August 6, Trump issued an executive order giving the app 45 days before "transactions" with the platform are banned. Meanwhile, the president has also pushed for a sale of TikTok to a U.S.-based parent company.
Last month TikTok technical program manager Patrick S. Ryan filed his federal lawsuit in the U.S. District Court of the Northern District of California accusing Trump of violating his Constitutional rights and defaming and disgracing U.S.-based TikTok Inc. employees by painting them as working for the Chinese Communist Party.
The government's filing states that Chinese law imposes "broad obligations on citizens and companies to cooperate" with the Chinese Communist government and that they must provide data and technological support to security agencies and the military.
"ByteDance is a Chinese company through and through," the filing argues. "It is headquartered in Beijing, subject to Chinese intelligence laws, contains internal CCP committees, and its founder and CEO has publicly affirmed that the company is committed to promoting the agenda and messaging of the CCP."
The government's Thursday filing asked U.S. District Judge Vince Chhabria, an Obama appointee, to deny Ryan's request for a temporary restraining order, immediately pausing the ban.
TikTok has called the government's allegations against it "speculative" and has said it took "extensive" efforts to address the administration's concerns about national security. The company did not immediately reply to a request for comment, but a spokesman previously told dot.LA that the company has "never provided user data to the Chinese government, nor would we do so if asked."
But because Trump's executive order bans generic "transactions," Ryan argues it's unclear if TikTok Inc. can even pay its 1,500 U.S.-based employees their wages and salaries when it goes into effect later this month.
Ryan's attorneys argue that he and other TikTok employees are in "imminent danger of losing their livelihood through governmental action that has no basis in fact, was politically driven, and afforded (Ryan) no procedural protections," according to court filings.
The U.S. Department of Commerce doesn't need to define the term "transaction" until the day the order takes effect, making it unclear if it will ultimately exempt wages and salaries for employees.
"The 1,500 TikTok employees working in the U.S. and their families will not be able to pay their rent or mortgages, or pay for food, medical treatments, and other essentials of life," Ryan's filing for a temporary restraining order states. "The executive order has offered no evidence that TikTok has breached national security interests, is capable of breaching national security interests or is about to breach national security interests."
Moreover, because Trump's executive order states that any effort to violate it is deemed a "conspiracy," the language could have a "chilling effect" on people going to work and doing their jobs, said Alexander Urbelis, a partner at Blackstone Law Group LLP, which represents Ryan.
The penalties for such a violation are not trivial. A violator can be fined up to $1 million or 20 years in prison.
Many of the 1,500 employees are new, as TikTok expanded from 300 employees a year ago to five times that number today. The order also jeopardizes the immigrant visas of employees in the U.S. on H1B visas that require an employer to sponsor them, the lawsuit alleges.
Ryan's lawsuit is believed to be the first time an employee has sued the president over an executive order, Urbelis said. But Justice Department attorneys argued Thursday that while Ryan is an employee of TikTok, the executive order doesn't directly impact him. They add that Ryan has not alleged that the president "intended to injure him personally," which could give him a case.
"As an employee of a private company, (Ryan) does not have protected property interest in future wages and unearned salary," the government's filing argues.
While Trump's executive order is founded on the government interest of "preventing the PRC (People's Republic of China) from using TikTok to surveil the American people, censor information, sow misinformation, and collect and use 'vast swaths' of personal and proprietary information from American users to advance the PRC's own interests."
Justice Department attorneys argue that the president has discretion over what constitutes a national emergency, and that it is "essentially a political question," not a legal one.
Ryan's attorney, Urbelis, said in a statement Thursday that the government's arguments are an obvious after-the-fact effort to cover for the president's "ill-considered actions."
"The President's own words and the timing of his statements signaled an obvious intention to target and punish TikTok (as part) of the president's tough-on-China political play and because TikTok users have levied trenchant criticisms of the president and his administration," Urbelis said.
In a brief filed Thursday in support of Ryan's lawsuit, the Electronic Frontier Foundation, a digital rights advocacy group, and two TikTok users argued that the executive order has a "direct and arguably intentional effect" on the First Amendment rights of millions of people to communicate free of government interference.
"It is hard to imagine the national security interests that would be compromised by a foreign power knowing viewership data of most of the content on TikTok," the amicus brief states, adding that the order is too broad.
Trump issued a second executive order on Aug. 14 giving ByteDance 90 days to divest itself of its U.S. TikTok operations. Trump has said he supports the potential acquisition of TikTok by Oracle, though ByteDance has reportedly been in talks with multiple interested suitors, including Microsoft and Walmart. Amid those talks, TikTok CEO Kevin Mayer resigned last week.
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