Cybersecurity Policy Report, TikTok: U.S. Restrictions Motivated by Anti-China Attitude, (Oct 15, 2020)

By Tom Leithauser

The Trump administration’s decision to restrict the operations of the TikTok video-sharing app in the U.S. was motivated by anti-China sentiment and by TikTok users’ effort to dampen attendance at a rally for President Trump’s reelection, TikTok told a federal court.

Although the administration cited concerns about the Chinese government collecting data about TikTok users for surveillance, the company told the U.S. District Court for the District of Columbia that the administration had not produced evidence to support its concerns.

"Notwithstanding the U.S. government’s failure to identify any security risk, plaintiffs provided extensive information to the government in good faith to address any conceivable concerns the government might have. They also proposed a number of mitigation strategies, which would allow the U.S. government to mitigate any claimed national security risks around TikTok’s user data and algorithms," the company told the court yesterday in TikTok, Inc., et al., v. Donald J. Trump, in his official capacity as President of the United States, et al. (no. 20-cv-02658).

The government’s attitude toward TikTok changed in tandem with President Trump’s views about the leadership of the Chinese government, the company said. "As the COVID-19 pandemic spread across the U.S. and the domestic economy worsened, the president and members of his administration began to use increasingly harsh anti-Chinese political rhetoric and repeatedly sought to blame China for the pandemic," it said.

The administration’s view of TikTok darkened further after TikTok users sought to disrupt attendance at a reelection rally over the summer in Tulsa, Okla., the company suggested. "In the summer of 2020, it was reported that TikTok users had used the app to coordinate mass ticket reservations for the president’s campaign rally in Tulsa, resulting in an embarrassment for the president’s campaign when significantly fewer persons appeared for the political rally than projected," it said.

"Shortly thereafter, Secretary of State [Michael] Pompeo announced that the administration was ‘looking at’ banning TikTok," it said. "The president’s reelection campaign then ran Facebook advertisements asking supporters to ‘sign the petition now to ban TikTok.’"

In its filing, TikTok asked D.C. Circuit Judge Carl Nichols to enlarge an existing injunction to cover a wider range of actions the administration was planning to restrict TikTok’s U.S. operations. Judge Nichols has already blocked the administration from preventing U.S.-based app stores from offering the TikTok app—a decision that the administration is appealing in the U.S. Court of Appeals for the District of Columbia Circuit.

TikTok would like the judge to extend his injunction to the administration’s plan to bar U.S.-based providers of web hosting and similar services from doing business with TikTok. Those remaining prohibitions "would completely shut down TikTok in the U.S.," the company said.

"Competitors have already taken advantage of the government’s highly-publicized intention to shut down the app to entice TikTok creators and users to switch platforms," it said.

The same arguments the judge accepted to undergird his original injunction apply equally to the remaining prohibitions, which are due to go into effect Nov. 12, TikTok said. The law cited by the administration to justify its restrictions on TikTok, the International Emergency Economic Powers Act (IEEPA), can’t be used to block "personal communication" and "informational materials," the company noted.

"This court has already recognized that its ruling that the first prohibition [on app stores] exceeds the limits of executive authority under IEEPA is ‘equally as applicable’ to the remaining prohibitions," it said. "This renewed motion seeks an injunction against the remaining prohibitions based on all of the claims in plaintiffs’ first motion."

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