The federal judge who blocked the White House’s ban on TikTok downloads in the U.S. Sunday night said the Trump administration “likely exceeded the lawful bounds” of the powers afforded to the president under the the International Emergency Economic Powers Act.
President Trump invoked the IEEPA in his executive order to ban TikTok, the short-form video app owned by Chinese internet giant ByteDance, in the United States. The law is designed to let the president take emergency action to prohibit business transactions with an entity that represents “an 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.”
However, the IEEPA includes two exceptions — both of which apply to TikTok, U.S. District Court Judge Carl Nichols of the District of Columbia wrote in his opinion, which was unsealed Monday.
Nichols, who was appointed to the court by President Trump, granted TikTok’s request to halt the download ban just hours before it was set to go into effect at midnight ET on Sunday.
As cited by the judge, the IEEPA does not give the president authority to regulate or prohibit, either directly or indirectly, “the importation or exportation of ‘information or informational materials” or “personal communication[s], which do not involve a transfer of anything of value.”
TikTok bolstered its case by comparing the app to a “news wire feed,” which is explicitly excluded from the purview of the IEEPA, Nichols wrote. The judge determined that the content exchanged by TikTok users does indeed constitute “information and informational materials,” as the posts in the app appear to fall under the IEEPA carve-out for such content as publications, films, photographs, artworks and newswire feeds. At a minimum, the Trump administration’s ban would “‘indirectly’ ‘regulate’ the transmission of ‘informational materials’ by U.S. persons,” the judge wrote.
DOJ attorneys attempted to justify regulation of TikTok’s “informational materials” by arguing that the app could potentially be used for cyber-espionage. The judge rejected this: “[I]t 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.”
On the “personal communication” question, Trump’s order and Commerce Secretary Wilbur Ross’s ensuing prohibitions “will have the intended effect of stopping U.S. users from communicating (and thus sharing data) on TikTok,” Nichols wrote.
U.S. government lawyers had argued that some TikTok user communications provide economic benefit to the company, as they tried to make the case that the ban is permissible because the IEEPA excludes personal communication only if it “does not involve a transfer of anything of value.” But Nichols rejected that, writing, “All communication service providers — from television stations and publishers to cellular phone carriers — get some value from a user’s ‘presence on’ their platform.”
“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,” the judge said in his opinion. “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.'”
Nichols noted that 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.”
The judge also found that the TikTok ban “will inflict irreparable economic and reputational harm on Plaintiffs. This factor therefore weighs in favor of granting preliminary relief.”
“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,” Nichols wrote. TikTok has claimed it has more than 100 million users in the U.S.
The Commerce Department originally set Sept. 20 for the TikTok download ban, citing Trump’s declaration that the Chinese-controlled app represents a threat to U.S. national security. The agency delayed the deadline to Sept. 27, given Trump’s preliminary approval a week ago of owner ByteDance’s deal to transfer TikTok ownership to American firms including Oracle and Walmart.
While Nichols granted TikTok’s motion to stop the Sept. 27 download ban, the judge rejected the company’s request to halt Trump’s executive order that would effectively shut down the app Nov. 12 if the deal to sell ownership of TikTok to U.S. buyers isn’t completed by then. Nichols said the prohibitions subject to the Nov. 12 deadline “should appropriately be the subject of separate proceedings.”