U.S. Judge Halts Trump's TikTok Ban, Hours Before It Was Set To Start

Sep 28, 2020
Originally published on September 28, 2020 1:53 pm

Updated 1:30 p.m. ET Monday

A federal judge on Sunday blocked President Trump's TikTok ban, granting a temporary reprieve to the wildly popular video-sharing app.

During a telephone court hearing on Sunday, lawyers for TikTok argued that Trump's clampdown infringed on free speech and due process rights.

John Hall, an attorney for TikTok, said that the app, with some 100 million American users, is a "modern day version of the town square" and shutting it down is akin to silencing speech.

Judge Carl Nichols of the U.S. District Court for the District of Columbia, responded by halting the ban, which was set to kick in at midnight Sunday.

The action from the White House would have forced TikTok to be removed from smartphone app stores, meaning TikTok could not reach new users, and those who already had it would be deprived of app updates, eventually rendering it nonfunctional.

Nichols, who was appointed by Trump, wrote in his opinion that Trump likely exceeded his authority by trying to ban TikTok.

The judge said while the president has broad emergency economic powers on national security matters, there are carve-outs for "information services" and "personal communication," and TikTok would fall under that category.

Nichols, however, denied a request to extend a Nov. 12 deadline for TikTok to spin off its U.S. operations to an American company, or face possible extinction in the country.

In a statement, TikTok said it is pleased the court sided with its legal arguments.

"We will continue defending our rights for the benefit of our community and employees. At the same time, we will also maintain our ongoing dialogue with the government to turn our proposal, which the President gave his preliminary approval to last weekend, into an agreement," a TikTok spokeswoman said.

In the wake of its setback, the Trump administration said it will postpone the planned ban of the app, but vowed to continue the legal battle.

"The E.O. is fully consistent with the law and promotes legitimate national security interests. The Government will comply with the injunction and has taken immediate steps to do so, but intends to vigorously defend the E.O. and the Secretary's implementation efforts from legal challenges," the Commerce Department said in a statement.

The judge's move means Chinese-owned TikTok can now operate without interruption at least until a full court hearing at a future date not yet set.

The U.S.-TikTok row started with an executive order blacklisting the app on Aug. 6, when the president invoked a national economic emergency, citing national security reasons.

In its court filing, TikTok's lawyers said there's no credible evidence to back up Trump's national security claims. Instead, TikTok's legal team accused the president of being driven by "political-related animus" for "political campaign fodder."

"It would be no different than the government locking the doors to a public forum, roping off that town square," Hall said on Sunday.

"Telling two-thirds of the country, who are not members of this community, that you're not going to be permitted in," Hall told the judge. "The government would be taking this extraordinary action at the very time that the need for free, open and accessible communication in America is at its zenith — 37 days before a national election."

U.S. Department of Justice lawyer Daniel Schwei countered that any free speech concerns are "completely irrelevant" to the president's national security prerogatives.

"The concern here is about data security risk and leaving data vulnerable to access by the Chinese government," Schwei said. "This is the most immediate national security threat. It is a threat today."

The White House fears China's authoritarian regime could gain access to the data TikTok collects and use it to spy on or blackmail Americans. Trump officials have called the chief executive of TikTok parent company ByteDance a "mouthpiece" of China's Communist Party. So far, U.S. officials have not offered direct proof that China has ever sought TikTok data.

TikTok, for its part, says it would deny any data requests from Beijing, pointing to how Americans' data is stored mostly in the U.S. and decisions about the data are made by a U.S.-led team.

The judge handing a temporary victory to TikTok follows the actions of another judge, in Northern California, who paused enforcement of the president's ban of a separate Chinese-owned app, WeChat. In that case, the judge found that the Trump administration offered "scant evidence" to support its national security fears.

Even a ban of six months, TikTok has said, would be devastating. TikTok's interim global head Vanessa Pappas estimated that 90% of TikTok users would quit if the app went dark for that amount of time.

Trump has indicated that he would back off his push to outlaw TikTok if its U.S. operations were sold to an American company. Software company Oracle and Walmart received tentative approval from the president in a deal to rescue the app, but since then, ByteDance and the American companies appear at odds over the new company's ownership structure.

Any agreement would need the blessing of the Chinese government, something that looks increasingly in doubt. On Saturday, the Global Times, an outlet of China's Communist Party, called Trump's crackdown on TikTok a "mafia-style robbery of a lucrative Chinese business" and that the Oracle deal was not likely to be approved.

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Well, TikTok lives in U.S. app stores, at least for now. A federal judge in Washington sided with the company last night, blocking President Trump's order that bans the video sharing app. The Trump administration, let's remember, calls the app a national security threat and is fighting in court to block TikTok's tock Chinese parent company, ByteDance from operating the app in the U.S. either by banning it outright or forcing a sale to a domestic buyer. We have NPR tech reporter Bobby Allyn here. Good morning, Bobby.

BOBBY ALLYN, BYLINE: Good morning, David.

GREENE: OK, so what is this court decision? What does it mean?

ALLYN: So the judge put the brakes on a ban that was going to, like you said, prevent any new downloads of TikTok. That was supposed to take effect at midnight Sunday. And the judge didn't explain his rationale for the ruling. But TikTok's lawyers argued in a hearing just over the weekend that shutting it down would be like shutting down a modern version of the town square. They said that's akin to silencing speech. And there sure is a lot of expression on TikTok, David. I mean, it's the fastest-growing app in the world. You know, it has some hundred million users in the U.S. So, you know, all those users can now breathe a sigh of relief. They can keep posting their lip syncing and other ridiculous videos for now, that is.

GREENE: It's been such an important relief for so many people going through these times of isolation. You say for now. That's important, right? I mean, this might not be the final word at all.

ALLYN: No, yeah, exactly. So this is a breather for TikTok. It buys them time before there's more extensive hearing on Trump's ban. And it's important to note here that the White House is not backing down from that ban. But as this winds its way through the courts, there's one very important date. And that is November 12. That's when TikTok has to find a American buyer or disappear for real in the U.S. TikTok was hoping that the judge would also push back that date. But the judge said, no, we're sticking to the November 12 date.

GREENE: Well, I mean, we heard so much about the potential deal that was supposed to keep TikTok alive in the U.S. for good. What's the latest there?

ALLYN: Yeah, there was hope at one point. You know, parties were racing towards an agreement. But then things sort of went south pretty quickly. Trump gave the green light to software company Oracle to take a stake in TikTok. And Walmart was going to be a major investor. But then over in Beijing, ByteDance, which owns TikTok, said, hey, hey, not so fast. We don't want to lose control of the biggest app to ever come out of China. So talks have stalled. But, you know, the parties haven't given up. You know, they're still discussing how they can maybe resolve this.

But the stakes are so high, David, for TikTok. I mean, even a temporary ban could mean 90% of TikTok's users will quit and join the competitors because, you know, in light of this happening, many other apps have cropped up that see opportunity here and are trying to take, you know, the users who maybe think TikTok might go away and hope that they jump over to their platform.

GREENE: What about this basic question, Bobby? Like, is our data safe on TiokTok if, you know, we're using it in the United States?

ALLYN: Yeah, this is at the very heart of the debate. You know, the Trump administration says having a Chinese owner creates a national security risk since China's government has, you know, unfettered access to private business in the country. And there is a consensus among experts that that's a real concern. But the particular threat from TikTok - that's a lot shakier. The White House has never offered ironclad evidence that China can definitely get its hands on the data of Americans. And TikTok says it's shielded because none of the data is stored on Chinese soil. And most of its data on Americans is encrypted. That said, David, none of those assurances are cooling the heat from the White House.

GREENE: All right. This journey continues.

ALLYN: Indeed.

GREENE: NPR's tech reporter Bobby Allyn. Bobby, thanks so much for covering it.

ALLYN: You got it. Thanks, David. Transcript provided by NPR, Copyright NPR.