TikTok’s Last-Minute Injunctive Reprieve

The Trump administration is attempting to curtail the U.S. use of Chinese communication apps, invoking national security concerns—namely, data sharing with the Chinese government. In recent weeks, two separate judges blocked the efforts targeted at TikTok and WeChat. Neither judge questioned the government’s substantial national security concerns in pursuing the bans. Both, however, were unconvinced that a complete ban was necessary, or constitutional. Judge Carl Nichols, responsible for granting TikTok’s reprieve, held that the government’s proposed ban “overstep[s] its authority” and “likely exceed[s]” the bounds of the law.

President Trump issued a pair of executive orders in early August, seeking to remove TikTok and WeChat from the U.S. app store; the apps were set to be removed last Sunday. The executive orders “shocked” both companies. To others, the executive orders fit squarely within the Trump administration’s expansive campaign against China in the face of the upcoming election.

After a California federal magistrate temporarily blocked the proposed ban of the WeChat app out of concern for First Amendment issues, Judge Nichols issued a preliminary injunction for TikTok, hours before the ban was to take effect. TikTok is currently still available on app stores. Judge Nichols, who was appointed to the bench by President Trump, was concerned that “this was a largely unilateral decision with very little opportunity for plaintiffs to be heard.”

Importantly, Judge Nichols expressed skepticism surrounding the authority that the government cited in justifying the ban: the 1970s International Emergency Economic Powers Act. In his opinion, the judge held that the law does not allow the prohibition of certain personal communications, including art and photographs, which the proposed ban would prevent. He opines that the proposed ban, as justified, is thus an overstep of government authority, warranting a preliminary injunction.

While the judge’s order only grants temporary reprieve, it does afford TikTok more time in its pursuit of a deal with Oracle to create TikTok Global. The data management of the new entity would be based in the U.S.; in distancing itself from its Chinese parent company, TikTok hopes to alleviate regulators’ national security concerns.

The road ahead is not easy for TikTok. The company must continue working out the details of its Oracle deal, and if a deal is closed, convince the government that it sufficiently reduces national security concerns to remain in U.S. app stores. At the very least, the injunction grants TikTok more time to save itself, but the clock is ticking.