Tiktok Inc. v. Trump

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TIKTOK INC., et al.,
Plaintiffs,
v. Civil Action No. 1:20-cv-02658 (CJN)
DONALD J. TRUMP, President of the United
States, et. al.,
Defendants.
MEMORANDUM OPINION
On May 15, 2019, acting pursuant to the International Emergency Economic Powers Act
(“IEEPA”), 50 U.S.C. §§ 1701–08, among other authorities, the President declared a national
emergency relating to the “unrestricted acquisition or use in the United States of information and
communications technology or services . . . supplied by persons owned by, controlled by, or
subject to the jurisdiction or direction of foreign adversaries.” On August 6, 2020, the President
invoked that national emergency declaration; determined that additional steps were necessary with
respect to Plaintiffs TikTok and its Beijing-based parent company ByteDance; provided that
certain transactions with ByteDance or its subsidiaries would be prohibited; and directed the
Secretary of Commerce to identify the prohibited transactions within forty-five days. On
September 18, 2020, the Secretary published a list of five transactions to be prohibited with respect
to ByteDance and its operations within the United States, and on September 19, revised the
implementation date for one of the sets of prohibitions and re-published the list of prohibited
transactions.
1
The first of those five prohibitions goes into effect at 11:59 p.m. today. On September 18,
2020, Plaintiffs filed this lawsuit alleging that the prohibitions exceed the President’s and
Secretary’s authority under IEEPA, violate the Administrative Procedure Act (“APA”), and are
unconstitutional under the First and Fifth Amendments and the Takings Clause. On September
23, Plaintiffs moved for preliminary injunctive relief, arguing that they have a likelihood of success
on their claims and that, absent an injunction, they will suffer irreparable harm. Pls.’ Mem. Supp.
Mot. Prelim. Inj., ECF No. 15-1, 15 (“Pls.’ P.I. Mot.”). For the reasons discussed below, Plaintiffs’
Motion is granted as to the prohibition that takes effect tonight.
I. BACKGROUND
The United States has long used economic sanctions to prohibit transactions that threaten
national security. In 1977, Congress enacted IEEPA, which provides peacetime authority to the
President “to deal with any unusual and extraordinary threat, which has its source in whole or
substantial part outside the United States, to the national security, foreign policy, or economy of
the United States, if the President declares a national emergency with respect to such threat.” 50
U.S.C. § 1701(a). Once the President has declared such an emergency, the President is empowered
to:
[R]egulate, direct and compel, nullify, void, prevent or prohibit, any . . . transfer
. . . of, or dealing in, or exercising any right, power, or privilege with respect to, or
transactions involving, any property in which any foreign country or a national
thereof has any interest . . . with respect to any property, subject to the jurisdiction
of the United States[.]
Id. § 1702(a)(1)(B).
On May 15, 2019, the President issued Executive Order 13873, Securing the Information
and Communications Technology and Services Supply Chain, 84 Fed. Reg. 22689 (May 15, 2019)
(“ICTS Order”). The President found that the widespread use of “communications technology”
2
that may be exploited by foreign adversaries was creating an “extraordinary threat to the national
security . . . of the United States.” Id. The President therefore declared a national emergency with
respect to that threat and determined to prohibit certain transactions with foreign countries or
foreign nationals that pose risks to the national security of the United States. A year later, the
President renewed that declaration, highlighting the pervasive threat posed by the close ties
between China-based technology firms and the government of the People’s Republic of China
(“PRC”). See Continuation of the National Emergency With Respect to Securing the Information
and Communications Technology and Services Supply Chain, 85 Fed. Reg. 29321 (May 13, 2020).
On August 6, 2020, the President invoked his powers under IEEPA and the national
emergency declared in the ICTS Order by identifying TikTok Inc. as a source of emerging threats
given its foreign ownership. See Exec. Order No. 13942, Addressing the Threat Posed by TikTok,
and Taking Additional Steps To Address the National Emergency With Respect to the Information
and Communications Technology and Services Supply Chain, 85 Fed. Reg. 48637 (“TikTok
Order”). TikTok is a short-loop video sharing app presently used by over 100 million Americans.
Compl., ECF No. 1, ¶ 1. The President determined that TikTok “automatically captures vast
swaths of information from its users, including internet and other network activity information
such as location data and browsing and search histories.” TikTok Order.
The President concluded that TikTok’s foreign ownership and data collection pose a risk
that the Chinese Communist Party (“CCP”) can “access . . . Americans’ personal and proprietary
information—potentially allowing China to track the locations of Federal employees and
contractors, build dossiers of personal information for blackmail, and conduct corporate
espionage.” Id. He also concluded that there is a risk of the CCP using TikTok to “censor[]
content that the [CCP] deems politically sensitive,” id., and “for disinformation campaigns that
3
benefit the [CCP], such as when TikTok videos spread debunked conspiracy theories about the
origins of the 2019 Novel Coronavirus.” Id.To mitigate those risks, the President directed the Secretary of the U.S. Department of
Commerce to identify a list of prohibited transactions with “ByteDance . . . or its subsidiaries,”
including TikTok. Id. at 48637–38. The President also separately ordered ByteDance to divest
itself of TikTok’s U.S. operations, including any interest it might have in U.S. user data. See
Regarding the Acquisition of Musical.ly by ByteDance Ltd., 85 Fed. Reg. 51297 (Aug. 14, 2020)
(“Divestment Order”).
Acting pursuant to the TikTok Order, on September 18, 2020, the Secretary of Commerce
published a list of five sets of prohibited transactions. The Secretary later revised the
implementation date for one of prohibitions. As a result, the list now prohibits:
1. Any provision of services, occurring on or after 11:59 p.m. eastern standard time
on September 27, 2020, to distribute or maintain the TikTok mobile application,
constituent code, or application updates through an online mobile application
store[;]
2. Any provision of internet hosting services, occurring on or after 11:59 p.m.
eastern standard time on November 12, 2020, enabling the functioning or
optimization of the TikTok mobile application[;]
3. Any provision of content delivery network services, occurring on or after 11:59
p.m. eastern standard time on November 12, 2020, enabling the functioning or
optimization of the TikTok mobile application[;]
4. Any provision of directly contracted or arranged internet transit or peering
services, occurring on or after 11:59 p.m. eastern standard time on November 12,
2020, enabling the functioning or optimization of the TikTok mobile application[;
and]
5. Any utilization, occurring on or after 11:59 p.m. eastern standard time on
November 12, 2020, of the TikTok mobile application’s constituent code,
functions, or services in the functioning of software or services developed and/or
accessible within the land and maritime borders of the United States and its
territories[.]
4
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. 60061-01
(Sept. 24, 2020) (“Commerce Identification”).
Before issuing those prohibited transactions, the Secretary reviewed and relied on a
decision memorandum that assessed the threats posed by ByteDance and TikTok. U.S. Dep’t of
Commerce, Mem. for the Sec’y, Proposed Prohibited Transactions Related to TikTok Pursuant to
Executive Order 13942 (Sept. 17, 2020), ECF No. 22-1 (“Commerce Memo”); see also Defs.’
Mem. Opp’n Pls.’ P.I. Mot., ECF No. 22, 2 (“Defs.’ Opp’n”). In particular, the Secretary of
Commerce found that the PRC is “building massive databases of Americans’ personal
information” to help the “Chinese government to further its intelligence-gathering and to
understand more about who to target for espionage, whether electronically or via human
recruitment.” Commerce Memo, ECF No. 22-1, 6.
The Secretary also found that the CCP will exploit “close ties” with ByteDance to further
its foreign policy agenda. See id. 7–9. ByteDance is headquartered in Beijing and remains subject
to the PRC’s National Intelligence Law, which “permits Chinese intelligence institutions” to “take
control of” any China-based firm’s “facilities” and “communications equipment.” See id. at 10.
ByteDance has signed a cooperation agreement with a PRC security agency, closed one of its
media platforms in response to CCP demands, and (as of August 2020) placed over 130 CCP
committee members in management positions throughout the company. Id. at 7, 11; see also Defs.’
Opp’n, ECF No. 22, 7–8. And because “ByteDance is subject to PRC jurisdiction, [and] PRC laws
can compel cooperation from ByteDance, regardless of whether ByteDance’s subsidiaries are
5
located outside the territory of the PRC,” the data held by ByteDance’s subsidiary companies may
also be extracted by the PRC. Commerce Memo, ECF No. 22-1, 19.
As ByteDance owns TikTok, the Secretary determined that TikTok’s Terms of Service and
Privacy Policy for new users allow TikTok to collect and “share [a user’s] information with
[ByteDance]” and the PRC “to respond to government inquiries.” Id. at 8–9; see also Ex. 8, ECF
No. 22-8, 6. The information that TikTok gathers is substantial, including:
1) registration information, such as age, username and password, language, and email or
phone number; 2) profile information, such as name, social media account information,
and profile image; 3) user-generated content, including comments, photographs, videos,
and virtual item videos that you choose to upload or broadcast on the platform; 4)
payment information, such as PayPal or other third-party payment information (where
required for the purpose of payment); 5) phone and social network contacts (names and
profiles); 6) opt-in choices and communication preferences; 7) information in
correspondence users send to TikTok; and 8) information sent by users through surveys
or participation in challenges, sweepstakes, or contests such as gender, age, likeness, and
preferences.
Defs.’ Opp’n, ECF No. 22, 8. The Secretary also concluded that the TikTok data of U.S. users is
especially vulnerable because TikTok keeps a backup of all its U.S. data in Singapore with a China-
based company called Alibaba. Commerce Memo [Sealed], ECF No. 21-1, 15. Like ByteDance,
“Alibaba is a Chinese company . . . beholden to PRC laws that require assistance in surveillance
and intelligence operations.” Id.Rather than implement all five prohibitions at once, the Secretary opted for a “phased
approach.” Id. at 22. The first prohibition goes into effect tonight, while the rest become effective
on November 12, 2020. Commerce Memo, ECF No. 22-1, 22. The Secretary explained that this
phased approach would “mitigate some national security risk immediately,” while giving other
Executive actors freedom to negotiate a possible divestment of ByteDance’s interest in TikTok
before the November deadline. Commerce Memo [Sealed], ECF No. 21-1, 22. Because the first
prohibition would, in practice, stop new U.S.-based users from downloading TikTok and block
6
existing U.S. users from updating the app, the Secretary viewed the first prohibition as the “easiest
to implement” while also having “the biggest impact in mitigating national security risks.” Id.The Secretary thus anticipated substantial reductions to TikTok’s “national security risk” from the
first prohibition, while giving TikTok and other stakeholders “time to prepare” for the four other
prohibited transactions. Id. at 22–23.
The Secretary’s Order states that these five prohibitions “only apply to the parties to
business-to-business transactions.” Commerce Identification, 85 Fed. Reg. at 60062. It also states
that the prohibitions “do not apply to . . . [t]he exchange . . . of personal or business information”
shared among TikTok users on the app, id, and that none of the prohibitions bars transactions
related to restructuring TikTok in accordance with the President’s August 14 Divestment Order.
On September 18, 2020, Plaintiffs filed this lawsuit alleging that the government’s actions
violate the Administrative Procedure Act (Count One), the First Amendment (Count Two), and
the Due Process Clause of the Fifth Amendment; exceed the President’s and Secretary’s authority
under IEEPA (Counts Four-Six); and violate the Takings Clause of the Fifth Amendment (Count
Seven). Compl., ECF No. 1. On September 23, Plaintiffs moved for preliminary injunctive relief,
arguing that they have a likelihood of success on some of these claims and that, absent an
injunction, they will suffer irreparable harm. Pls.’ P.I. Mot., ECF No. 15-1, 15–36. Following
expedited briefing on the Motion, ECF Nos. 15, 21–22, 26, the Court heard oral argument on
September 27, 2020.
II. LEGAL STANDARD
“A preliminary injunction is an extraordinary remedy that should be granted only when the
party seeking the relief, by a clear showing, carries the burden of persuasion.” Cobell v. Norton,
391 F.3d 251, 258 (D.C. Cir. 2004) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)). A
7
plaintiff seeking such relief must demonstrate that (1) it has a likelihood of succeeding on the
merits, (2) it faces irreparable harm if an injunction does not issue, (3) the balance of equities
favors relief, and (4) an injunction is in the public interest. Winter v. Nat’l Res. Def. Council, Inc.,
555 U.S. 7, 20 (2008). When “the Government is the opposing party,” the assessment of “harm to
the opposing party” and “the public interest” merge. Nken v. Holder, 556 U.S. 418, 435 (2009).
Plaintiffs must make “a clear showing that” they are “entitled to such relief.” Winter, 555
U.S. at 22. And while the D.C. Circuit has not yet directly held that Plaintiffs must make a clear
showing on each of the four Winter factors, considered dicta in this jurisdiction favors that
approach. See In re Navy Chaplaincy, 738 F.3d 425, 428 (D.C. Cir. 2013) (demanding proof on
all four prongs); Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1296 (Kavanaugh, J.,
concurring) (observing that, after Winter, “the old sliding-scale approach to preliminary
injunctions—under which a very strong likelihood of success could make up for a failure to show
a likelihood of irreparable harm, . . . is no longer . . . viable” (internal quotation and citation
omitted)).
II. ANALYSIS
A. Likelihood of Success on the Merits
The Court begins with the “most important factor”—Plaintiffs’ likelihood of success on
the merits. Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014). As the Plaintiffs have
demonstrated that the Secretary’s prohibitions likely exceed the lawful bounds proscribed by
IEEPA, the Court finds that this first factor weighs in favor of granting preliminary relief.
As noted above, IEEPA contains a broad grant of authority to declare national emergencies
and to prohibit certain transactions with foreign countries or foreign nationals that pose risks to
the national security of the United States. But IEEPA also contains two express limitations
8
relevant here: the “authority granted to the President . . . does not include the authority to regulate
or prohibit, directly or indirectly” either (a) the importation or exportation of “information or
informational materials”; or (b) “personal communication[s], which do[] not involve a transfer of
anything of value.” 50 U.S.C. § 1702(b)(1), (3) (emphasis added). Congress has stressed that
these limitations be given “broad scope.” Kalantari v. NITV, Inc., 352 F.3d 1202, 1205 (9th Cir.
2003) (quoting H.R. Conf. Rep. No. 103–482, at 239 (1994)); see also See United States v.
Amirnazmi, 645 F.3d 564, 585 (3d Cir. 2011) (Congress added the words “directly or indirectly”
to § 1702(b) to ensure that the limitation would “have a broad scope.”). Plaintiffs contend that the
Secretary’s prohibitions on the transactions identified in the Commerce Identification represent, at
a minimum, the indirect regulation of informational materials and personal communications. See
Pls.’ P.I. Mot., ECF No. 15-1, 19.
1. Informational Materials
IEEPA’s informational-materials limitation deprives the President of authority to regulate
or prohibit—“directly or indirectly,” “regardless of format or medium of transmission,” and
“whether commercial or otherwise”—the importation or exportation of “informational materials.”
50 U.S.C. § 1702(b)(3). The phrase “informational materials” is immediately followed by a non-
exhaustive list of examples, “including but not limited to, publications, films, . . . photographs, . . .
artworks, . . . and news wire feeds.” 50 U.S.C. § 1702(b)(3).
Plaintiffs argue that the Secretary’s prohibitions are covered by this express carveout
because the prohibitions will prevent U.S. users—both new U.S. users starting today at 11:59 p.m.,
and then all U.S. users on November 12—from sharing and receiving content on TikTok. Pls.’
P.I. Mot., ECF No. 15-1, 18–19; see also Pappas Decl., ECF No. 15-3, ¶¶ 4, 20. They argue that
over 100 million Americans currently use TikTok to share their films, photographs, art, and news
9
with users across international borders, Pappas Decl., ECF No. 15-3, ¶ 20, and that “U.S. content
can comprise as much as 60% of the content in TikTok’s non-U.S. markets.” Id. This content,
Plaintiffs argue, constitutes “informational materials” the importation and exportation of which
cannot be regulated, either indirectly or directly, pursuant to IEEPA. Reply, ECF No. 26, 14.
Plaintiffs bolster their plain-meaning analysis by comparing TikTok to a “news wire feed,”
50 U.S.C. § 1702(b)(3), which the Oxford English Dictionary defines as “a service which transmits
up-to-the-minute news, usually electronically (especially via the internet), to news media and the
general public.” Newswire, Oxford English Dictionary, available at
www.oed.com/view/Entry/255044. Like a news wire feed, TikTok facilitates the transmission of
news but with a bonus: it also lets users publish other items on the list of informational materials,
like short videos, photographs, and art. Pls.’ P.I. Mot., ECF No. 15-1, 18.
In response, the government first argues that the Secretary has “simply prohibit[ed]
business-to-business economic transactions that support certain aspects of TikTok’s U.S.
operations.” Defs.’ Opp’n, ECF No. 22, 18. The Secretary has not, the government argues,
“prohibit[ed] any importing or exporting of information,” or taken any action with respect “to
TikTok users themselves.” Id.But that argument fails to grapple with IEEPA’s text. Section 1702(b)(3) provides that
IEEPA’s grant of authority “does not include the authority to regulate or prohibit, directly or
indirectly,” the cross-border transmission of “information and informational materials.” 50 U.S.C.
§ 1702(b)(3). The content exchanged by TikTok users constitutes “information and informational
materials”; indeed, much of that content appears to be (or to be analogous to) “publications, films,
. . . photographs, . . . artworks, . . . and news wire feeds.” Id. And the purpose and effect of the
Secretary’s prohibitions is to limit, and ultimately reduce to zero, the number of U.S. users who
10
can comment on the platform and have their personal data on TikTok. Commerce Memo, ECF
No. 22-1, 22. At a minimum, then, the Secretary’s prohibitions “indirectly” “regulate” the
transmission of “informational materials” by U.S. persons. Id.Moreover, Section 1702(b)(3)’s express limitation applies to “commercial” informational
materials. If prohibitions on business-to-business transactions could not constitute the regulation
of “informational materials,” then there would have been no reason for Congress to include the
word “commercial” when defining the scope of § 1702(b)(3)’s limitation. United States v.
Menasche, 348 U.S. 528, 538–39 (1955) (directing courts “to give effect, if possible, to every
clause and word of a statue”).
To be sure, TikTok (like a news wire, which is expressly identified in IEEPA’s carveout)
is primarily a conduit of “informational materials.” In that sense, it is (among other things) a
“medium of transmission,” and IEEPA provides that this carveout applies “regardless of format or
medium of transmission.” 50 U.S.C. § 1702(b)(3). That is especially true where, as here, the
transmitting medium is inextricably bound up with and exists primarily to share protected
informational materials. 1
1
At oral argument, the government contended that the D.C. Circuit has read IEEPA’s indirect
regulation language as barring only executive actions targeting “informational materials”
themselves, as opposed to prohibitions aimed elsewhere that merely burden “trade in
informational materials.” See Hr’n Tr., Sept. 27, 2020 (forthcoming) (citing Walsh v. Brady, 927
F.2d 1229, 1232 (D.C. Cir. 1991)). Not so. In Walsh, the plaintiff alleged that certain Treasury
Department travel restrictions exceeded IEEPA’s informational-materials limitation by indirectly
burdening his trade in Cuban posters. 927 F.2d at 1230–31. The plaintiff argued that a previous
version of § 1702(b)(3) “extinguish[ed] any executive authority to use [IEEPA] to impose any
regulation that ‘significantly burdens’ trade in informational materials.” Id. at 1232 (emphasis
added). The Court of Appeals rejected that novel reading, affording deference to an agency
assessment that “[s]uch travel was considered too tangential to the actual physical importation
and exportation of informational materials to fall within the language of [§ 1702(b)(3)].” Id. at
1231 (emphasis added). Here, by contrast, the relationship between the Secretary’s prohibitions
and the informational materials U.S. users post on TikTok is neither “tangential” nor generic.
11
Defendants next contend that Plaintiffs’ plain-language approach would create an IEEPA-
free zone that “Congress could not have intended.” Defs.’ Opp’n, ECF No. 22, 18. As the
government puts it, “it is unfathomable that Congress intended through section 1702(b) to limit
the President’s ability to prevent a foreign government . . . from dominating the country’s data
services. Yet that absurd conclusion would necessarily flow from interpreting subsection (b)(3)
in the way Plaintiffs suggest.” Id.
There is something to this argument, especially as foreign adversaries’ use of information
and data (and the United States’ efforts to respond to and combat those efforts) becomes ever more
important. But it does not find support in the text of the statute. In fact, subsection (b)(3)
forecloses even the indirect regulation of news wires, another parallel kind of information medium
that foreign adversaries could exploit to promote misinformation. To be sure, TikTok’s users share
more than just news, but that fact makes it more likely that the prohibitions here fit within the plain
meaning of subsection (b)(3).2
Finally, the government proposes a novel reading of the Espionage Act. See Defs.’ Opp’n,
ECF No. 22, 20 (citing 18 U.S.C. § 794(a)). Section 1702(b)(3) contains an exception to its
exception, so to speak, and permits the regulation of informational materials, “with respect to . . .
See id. at 1231, 1233. TikTok exists to facilitate communication and the Secretary’s prohibitions
aim to stop it.
2
The government argues in passing that OFAC excludes “material not fully created and in
existence at the date of the transactions” from the scope of the phrase “informational
materials.” Defs.’ Opp’n, ECF No. 22, 19 (citing 31 C.F.R.§ 560.210(c)(2)). Even assuming
OFAC’s exclusion merits deference in this context, it would not allow the Secretary to
effectively ban TikTok. Plaintiffs have shown that TikTok users can film and design content
outside of TikTok’s ecosystem (on the iPhone Camera app, for example) to post later. See
Reply, ECF No. 26, 16 n.5. When users share pre-made videos, those videos are necessarily
“fully created and in existence” before they reach TikTok, which places them outside of OFAC’s
exclusion.
12
acts . . . prohibited by chapter 37 of Title 18.” That Title authorizes life imprisonment or the death
penalty for those who share U.S. defense secrets (especially classified government materials) with
foreign adversaries. See Gorin v. United States, 312 U.S. 19, 26 (1914); see also United States v.
Harper, 729 F.2d 1216, 1217–18 (9th Cir. 1984) (prosecuting under 18 U.S.C. § 794 for sending
“secret national defense information” to a foreign officer). But it is not plausible that the films,
photos, art, or even personal information U.S. users share on TikTok fall within the plain meaning
of the Espionage Act.
2. Personal Communications
Like the informational-materials limitation, § 1702(b)(1) states that IEEPA’s grant of
authority does not include the “authority to regulate or prohibit, directly or indirectly . . . any . . .
personal communication, which does not involve a transfer of anything of value.” 50 U.S.C.
1702(b)(1). It is undisputed that the Secretary’s prohibitions will have the effect of preventing
Americans from sharing personal communications on TikTok. Reply, ECF No. 26, 12. As
Plaintiffs put it, the prohibitions “will destroy this online community, first by requiring the removal
of TikTok from . . . U.S. app stores, and, when the remaining Prohibitions come into effect on
November 12, 2020, shutting down TikTok entirely.” Pls.’ P.I. Mot., ECF No. 15-1, 18; see also
Pappas Decl., ECF No. 15-3, ¶¶ 4, 17.
The government counters by arguing that some communications on TikTok do have
economic value. Defs.’ Opp’n, ECF No. 22, 16. Fair enough. But “a wide swath of TikTok
videos, public comments . . . , and private messages between friends about TikTok videos” are
“personal communications with no economic value at all.” Reply, ECF No. 26, 13. The
government also argues that, even if the communications were of no value to the creators, they
benefit TikTok as a platform. Defs.’ Opp’n, ECF No. 22, 16. But such an expansive reading of
13
the phrase “anything of value” would write the personal-communications limitation out of the
statue. All communication service providers—from televisions stations and publishers to cellular
phone carriers—get some value from a user’s “presence on” their platform. Reply, ECF No. 26,
15. Congress enacted § 1702(b)(1) to protect personal communications, but even the letter a
person drops in the mail adds some value to the mail carrier; it cannot be that IEEPA authorizes
the targeting of such communications. See King v. Burwell, 576 U.S. 473, 494 (2015) (rejecting
an interpretation because it was “implausible that Congress meant the Act to operate in this
manner”).
*****
In sum, the TikTok Order and the Secretary’s prohibitions will have the intended effect of
stopping U.S. users from communicating (and thus sharing data) on TikTok. To be sure, the
ultimate purpose of those prohibitions is to protect the national security by preventing China from
accessing that data and skewing content on TikTok. And the government’s actions may not
constitute direct regulations or prohibitions of activities carved out by 50 U.S.C. 1702(b). But
Plaintiffs have demonstrated that they are likely to succeed on their claim that the prohibitions
constitute indirect regulations of “personal communication[s]” or the exchange of “information or
informational materials.”3
B. Irreparable Harm
The Court next considers whether Plaintiffs have made a showing of irreparable harm.
“[P]roving ‘irreparable’ injury is a considerable burden, requiring proof that the movant’s injury
3
Because the Court concludes that Plaintiffs have demonstrated a likelihood of success under
IEEPA, it need not analyze Plaintiffs’ other statutory and constitutional claims to decide whether
Plaintiffs are entitled to preliminary relief. But the Court does note that Plaintiffs appear to have
presented at least serious questions on their other claims.
14
is ‘certain, great and actual—not theoretical—and imminent, creating a clear and present need for
extraordinary equitable relief to prevent harm.’” Power Mobility Coal. v. Leavitt, 404 F. Supp. 2d
190, 204 (D.D.C. 2005) (quoting Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)). In
addition, “the certain and immediate harm that a movant alleges must also be truly irreparable in
the sense that it is ‘beyond remediation.’” Elec. Priv. Info. Ctr. v. U.S. Dep’t of Just., 15 F. Supp.
3d 32, 44 (D.D.C. 2014) (quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290,
297 (D.C. Cir. 2006)). The movant must “substantiate the claim that irreparable injury is likely to
occur” and “provide proof . . . indicating that the harm is certain to occur in the near future.” Wis.
Gas Co., 758 F.2d at 674. That is because “[i]ssuing a preliminary injunction based only on a
possibility of irreparable harm is inconsistent with [the Supreme Court’s] characterization of
injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that
the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22.
Plaintiffs have demonstrated that, absent injunctive relief, they will suffer irreparable harm.
It is undisputed that as of the date of the TikTok Order, TikTok was one of the fastest growing
apps in the United States, adding 424,000 new users each day. See Pappas Decl., ECF No. 15-3,
¶ 18. Barring TikTok from U.S. app stores would, of course, have the immediate and direct effect
of halting the influx of new users, likely driving those users to alternative platforms and eroding
TikTok’s competitive position. Id. In fact, TikTok has proffered unrebutted evidence that
uncertainty in TikTok’s future availability has already driven, and will continue to drive, content
creators and fans to other platforms. See Pls.’ P.I. Mot., ECF No. 15, 34. The nature of social
media is also such that users are unlikely to return to platforms that they have abandoned. See id.Thus, if the first prohibition were to take effect tonight but was later held to be unlawful, TikTok
would not be able to recover the harm to its user base. Pls.’ P.I. Mot., ECF No. 15-1, 33–35; see
15
also Pappas Decl., ECF No. 15-3, ¶ 19. Plaintiffs have also proffered evidence that they have been
harmed, and will continue to be harmed, by the erosion of TikTok’s attractiveness as a commercial
partner. Pappas Decl., ECF No. 15-3, ¶ 23. TikTok’s business relies on commercial partners and
advertisers that work with it because of its robust user base and popularity as a video- and
information-sharing platform. Id. Finally, TikTok has shown that, in the absence of injunctive
relief, it will be unable to recruit and retain employees to build—or even maintain—its business.
Pappas Decl., ECF No. 15-3, ¶ 26.
The Secretary’s prohibitions, including the prohibitions scheduled to take effect tonight,
will inflict irreparable economic and reputational harm on Plaintiffs. This factor therefore weighs
in favor of granting preliminary relief.
C. Balance of the Equities and Public Interest
The Court now turns to the final two Winter factors—the balance of the equities and the
public interest. When the government is the nonmovant in a request for a preliminary injunction,
the harm to the opposing party and public interest merge and are considered “one and the same.”
Pursuing America’s Greatness v. Fed. Election Comm., 831 F.3d 500, 511 (D.C. Cir. 2016). That
is because “the government’s interest is the public interest.” Id. In assessing these factors, courts
consider the impacts of the injunction on nonparties as well. See id. at 511–12.
The government argues that a preliminary injunction would displace and frustrate the
President’s decision on how to best address a national security threat—an area where the courts
typically defer to the President’s judgment. See Pls.’ P.I. Mot., ECF No. 15-1, 43. The Court
must, of course, give deference to the Executive Branch’s “evaluation of the facts” and the
“sensitive and weighty interests of national security and foreign affairs,” Holder v. Humanitarian
Law Project, 561 U.S. 1, 33–34 (2010), including “the timing of those . . . decisions.” Holy Land
16
Found. for Relief & Dev. v. Ashcroft, 219 F. Supp. 2d 57, 74 n.28 (D.D.C. 2002). Here, the
government has provided ample evidence that China presents a significant national security threat,
although the specific evidence of the threat posed by Plaintiffs, as well as whether the prohibitions
are the only effective way to address that threat, remains less substantial. At a minimum, the Court
cannot adopt Plaintiffs’ argument that “the government will not face any harm if a preliminary
injunction is granted.” Pls.’ P.I. Mot., ECF No. 15-1, 37.
But for the reasons discussed above, Plaintiffs have demonstrated that they are likely to
succeed on their IEEPA claims, and the government “cannot suffer harm from an injunction that
merely ends an unlawful practice or reads a statute as required.” R.I.L-R v. Johnson, 80 F. Supp.
3d 164, 191 (D.D.C. 2015) (quoting Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013)).
That is because “[t]here is generally no public interest in the perpetuation of unlawful agency
action.” League of Women Voters of U.S. v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016). Rather,
“there is a substantial public interest ‘in having governmental agencies abide by the federal laws
that govern their existence and operations.’” Id. (quoting Washington v. Reno, 35 F.3d 1093, 1103
(6th Cir. 1994)).
Weighing these interests together with Plaintiffs’ likelihood of succeeding on their IEEPA
claim and the irreparable harm that Plaintiffs (and their U.S. users) will suffer absent an injunction,
the Court concludes that a preliminary injunction is appropriate.
III. SCOPE OF RELIEF
“[I]njunctive relief should be no more burdensome to the defendant than necessary to
provide complete relief to the plaintiffs.” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765
(1994) (quoting Califano v. Yamasaki, 442 U.S. 682, 702 (1979)). Although Plaintiffs’ IEEPA
arguments are equally as applicable to the Secretary’s November prohibitions as they are to
17
paragraph 1 of the Commerce Identification, the only truly imminent and immediate harm that
Plaintiffs will suffer absent an injunction relates to paragraph 1 of the Commerce Identification.
The Court therefore agrees with the government that injunctive relief should be limited to the
prohibitions contained in paragraph 1, and that the other paragraphs of the Commerce
Identification should appropriately be the subject of separate proceedings, which can be briefed
and decided (potentially through cross-motions for summary judgment, and on a full
administrative record) prior to those restrictions’ effective date of November 12. Such a course is
consistent with the Court’s direction to the parties on September 24. See Hr’g Tr. at 21 (“[T]he
immediate issue before me, as I see it, is whether September 27th, whether paragraph 1 should be
permitted to take effect or should be enjoined.”).4
IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion for a Preliminary Injunction is granted as to
paragraph 1 of the Commerce Identification. An Order will accompany this memorandum opinion.
DATE: September 27, 2020
CARL J. NICHOLS
United States District Judge
4
The Court does not agree with the government, however, that a bond is appropriate here.
Plaintiffs seek to vindicate important interests, and there is no risk that Defendants will suffer
monetary harm. See DSE, Inc. v. United States, 169 F.3d 21, 33 (D.C. Cir. 1999).
18