The TikTok and WeChat controversy continues as in two separate rulings, judges have questioned the US government’s assertion that data from American users is being accessed by the Chinese government threatening national security of the US.
In the TikTok case, a US district court judge issued preliminary injunction late on September 27 blocking the Commerce Department order that banned downloads of the app at 11:59 pm on Sunday after lawyers for the popular Chinese video platform argued that the ban effectively infringes on First Amendment rights and do irreparable harm to the business.
In his opinion that was released on Monday, Judge Carl Nichols of the District Court for the District of Columbia, wrote: “The government has provided ample evidence that China presents a significant national security threat, although the specific evidence of the threat posed by (TikTok), as well as whether the prohibitions are the only effective way to address that threat, remains less substantial.”
Earlier in the WeChat case, a federal judge in San Francisco had issued a ruling early last Sunday (September 21) issuing a preliminary injunction blocking the administration’s order to ban the app that is owned by China Internet giant Tencent on similar grounds. “On this record — while the government has established that China’s activities raise significant national security concerns — it has put in scant little evidence that its effective ban of WeChat for all US users addresses those concerns,” the judge wrote, as she set a October 15 hearing on the Justice Department’s request she reconsider her ruling and allow the WeChat order to take immediate effect.
TikTok owner ByteDance and WeChat owner Tencent have denied the apps are used for spying on Americans.
The Commerce Department said the government would comply with the injunction and has taken immediate steps to do so. It, however, maintained that the Executive Order for the ban was fully consistent with the law and promotes legitimate national security interests, and that the departent intends to vigorously defend the order and the Secretary’s implementation efforts from legal challenges.
The TikTok case
In his arguments opposing the ban, John Hall, lawyer for TikTok, said TikTok was more than an app since it functioned as a “modern day version of a town square”, and a prohibition order “would be no different than the government locking the doors to a public forum, roping off that town square”.
A more comprehensive ban on TikTok, however, remains in place for November, about a week after the presidential election as the judge declined “at this time” to block restrictions. He said he anticipated further legal filings on both sides before arriving at a final decision on whether to block other restrictions set for November 12.
Nichols also rejected the Justice Department’s effort to invoke the Espionage Act, which authorizes life imprisonment or the death penalty for those who share US defense secrets. “It is not plausible that the films, photos, art, or even personal information US users share on TikTok fall within the plain meaning of the Espionage Act,” he observed.
TikTok’s parent company ByteDance has been in talks with Oracle and Walmart for a change in control and structure of the company in the US, which initially President Trump said had his approval. However, the deal remains unfinalized since the two sides since have differed over the structure. While ByteDance said last week that it will still own 80% of the US entity, Oracle has been maintaining that Americans “will be the majority and ByteDance will have no ownership in TikTok Global.”
Interestingly, Trump had also said he could retract his approval if Oracle doesn’t have “total control” of the company, though he didn’t clarify what he meant by that.
The ban orders and the deal have faced severe criticism in China, which has labelled it as “bullying” and “extortion”. The China’s foreign ministry has also said Beijing will take necessary measures to safeguard its companies but hasn’t explained further.