TRUMP’S TIKTOK BAN BLOCKED BY FEDERAL JUDGE

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A Judge for the US District Court for the District of Columbia granted a preliminary injunction Monday 8-12-2020, preventing the Trump administration from prohibiting the operation of the popular China-based social media app TikTok.

The order follows President Donald Trump’s signing of Exec. Order No. 13942, which identified TikTok, a short-loop video sharing app presently used by more than 100 million Americans, as a technology firm that poses a risk to national security.

ORDERED that Plaintiffs’ Renewed Motion for Preliminary Injunction, ECF No. 43, is GRANTED as to the prohibited transactions in the Commerce Identification. U.S. Dep’t of Commerce, Identification of Prohibited Transactions to Implement Executive Order 13942 and Address the Threat Posed by TikTok and the National Emergency with Respect to the Information and Communications Technology and Services Supply Chain, 85 Fed. Reg. 60061– 63 (Sept. 24, 2020) (“Commerce Identification”). It is further ORDERED that by December 18, 2020, the Parties shall meet, confer, and file a Joint Status Report proposing a schedule for further proceedings. The Parties may also address any other issues that they believe will be helpful to the Court.

Following the signing, TikTok and its parent company ByteDance filed a lawsuit alleging that the government’s actions violated its First and Fifth Amendment rights and that the executive order exceeded the President and Commerce Secretary’s authority. They had also moved for preliminary injunctive relief, arguing that without such an injunction, they would suffer irreparable harm.

Judge Carl Nichols of the US District Court in Washington, granting the injunction, ruled that the President and the Secretary of Commerce likely overstepped” their use of presidential emergency powers and acted in an arbitrary and capricious manner by failing to consider obvious alternatives.

Nichols is the second federal judge to fully block the Trump administration’s sanctions against TikTok, following a decision by District Court Judge Wendy Beetlestone of the Eastern District of Pennsylvania dated 30-10-2020. The court in this matter gave 3 principle grounds for granting the injunction but primarily on the basis that great hardship were suffered by the user of this App who were deprived of an opportunity to use almost all of a sudden.

First, such a remedy is the proper means to provide complete relief to Plaintiffs. Plaintiffs reside in three different states and have followers throughout the United States. In order to provide Plaintiffs complete relief, the TikTok app would, at minimum, need to remain available not only to Plaintiffs, but also to their millions of followers. The Court must consider what remedy is workable, and “drafting – much less enforcing – a preliminary injunction that runs only” to only the three named Plaintiffs “is nigh impossible.” Id. The parties at oral argument were unable to explain how the various services providers whose transactions are affected by the Commerce Identification could tailor the ban so that the specified users were unaffected. Service providers provide support to the TikTok app itself, not to individual TikTok users. Even if ordered to do so, there is no indication that service providers are able to: (1) identify which TikTok app users follow the Plaintiffs; (2) ensure that these applications are properly serviced and functioning; and (3) comply with the Commerce Identification with respect to the remaining TikTok users within the United States. Moreover, such a remedy would still be underinclusive, as Plaintiffs’ would be prevented from reaching new followers”

Please see both the orders