Attorneys representing a TikTok employee asked a federal judge late Thursday to hit pause on the viral video app's ban while his lawsuit against President Donald Trump is heard.
The motion stems from a federal lawsuit filed by U.S.-based TikTok technical program manager Patrick S. Ryan in the U.S. District Court of the Northern District of California last month, after Trump issued an executive order banning any "transactions" with the popular social media app over national security concerns.
"(Ryan) and other U.S. employees of TikTok 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," the filing for the injunction states.
Trump's August 6 order put a 45-day clock on a ban of the popular social media app, owned by China-based ByteDance Ltd. The Administration has pushed for ByteDance to sell TikTok to a U.S.-based company over national security concerns that it is sharing data with the Communist government.
In his lawsuit, Ryan accuses 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. While Ryan's lawsuit was filed the same day as TikTok's own separate federal suit against the president, the Culver City-based company has yet to file a request for a preliminary injunction.
The executive order's ban on unspecified "transactions" technically prevents TikTok Inc. from paying its 1,500 U.S.-based employees their wages and salaries when it takes effect on Sept. 21, the lawsuit states. 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," Thursday's court filing 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."
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.
The lawsuit is believed to be the first time an employee has sued the president over an executive order, according to Alexander Urbelis, partner at Blackstone Law Group LLP, which filed the request for a preliminary injunction.
Thursday's filing argues that the executive order should be voided because it is speculative about the national security concerns and vague in such a way that it's impossible for anyone to know what can or cannot be done.
Trump's executive order states any effort to violate the order is prohibited and deemed a "conspiracy," but does not elaborate further.
"We don't know what kind of actions are actually prohibited," Urbelis said. The language "can have a chilling effect on people going to work and doing their jobs because it could arguably make doing someone's job and getting paid for it into a criminal conspiracy."
The penalties for such a violation are not trivial. A violator can be fined up to $1 million or up to 20 years in prison. The filing also raises equal protection concerns: That TikTok employees are being treated differently simply because they work for "what's perceived to be a Chinese company," Urbelis said.
Moreover, the filing argues that because the law's language is imprecise, its enforcement can be arbitrary or discriminatory.
"You can essentially pick and choose to whom the law will apply," Urbelis said. "You can say it applies to this party, but not that party, or people who work for a Chinese or Russian company. (But) the law has to apply equally to all persons, it should not be arbitrary."
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 vying for the purchase. Amid those talks, TikTok CEO Kevin Mayer resigned last week.
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