by Blaine Manire, J.D. Candidate, 2023
In TikTok Incorporated v. Trump, the U.S. District Court for the District of Columbia granted a preliminary injunction blocking enforcement of Executive Order (EO) 13942, which banned TikTok from use within the United States.1 TikTok is a Chinese-owned video-sharing application that allows users to view and share short videos with one another.2 Under the International Emergency Economic Powers Act (IEEPA), which grants the President the authority to “deal with any unusual and extraordinary threat,”3 President Trump issued EO 13942, declaring TikTok a threat and banning its mobile application from being downloaded, updated, and used within the United States.4 The first prohibition drafted in accordance with the EO 13942—one of five—prohibits “[a]ny provision of services . . . to distribute or maintain the TikTok mobile application, constituent code, or application updates through an online mobile application store.”5 Only the first provision was planned to take effect on September 27, 2020.6 In response, TikTok filed for preliminary injunctive relief, alleging that the ban exceeded the President’s authority under IEEPA and its enforcement would cause “irreparable harm.”7
Applying the traditional four-factor test for injunctive relief, the court sided with TikTok and granted the preliminary injunction.8 The court agreed with TikTok’s claim that it would likely succeed on the merits, founding that TikTok adequately demonstrated that the prohibition likely “exceed[s] the lawful bounds proscribed by IEEPA.”9 Under IEEPA, the President is not authorized to regulate the importation or exportation of “informational materials” or personal communications which do not involve the transfer of “anything of value.”10 IEEPA defines “informational materials” as including, but not limited to, “publications, films, . . . photographs, . . . and news wire feeds.”11 In its argument, TikTok claimed that because the content produced by TikTok users is considered “informational materials,” it cannot be regulated under IEEPA.12 The government claimed that TikTok content/communications do hold value, either directly to the creator or to TikTok as a whole, and as such can be regulated by IEEPA.13 The court rejected this argument due to the government’s “expansive reading of the phrase ‘anything of value . . . .’”14 Second, the court reviewed TikTok’s claim that it would face “irreparable harm” without the injunction.15 TikTok claimed that due to its popularity and growth rate in the United States, “[b]arring TikTok from U.S. app stores would . . . erod[e] TikTok’s competitive position.”16 TikTok further claimed that this erosion would cause it to lose business partners, along with the ability to maintain and grow its business.17 The court agreed.18
Since the government was the nonmovant in this action, the court reviewed the last two factors, the balance of equities and the public interest, as one.19 The government argued that an injunction would frustrate the President’s ability to address national security threats, and provided evidence to the court of China’s national security threat.20 In reviewing this argument, the court noted that, though it must “give deference to the Executive Branch’s ‘evaluation of the facts’ and the ‘sensitive and weighty interests of national security and foreign affairs,’”21 it found the threat posed by TikTok as “less substantial.”22 For these factors, TikTok argued that “the government will not face any harm if a preliminary injunction is granted,”23 but the court rejected this argument.24 In the end, the court concluded that TikTok “demonstrated that they are likely to succeed on their IEEPA claims,” and that irreparable harm will occur absent an injunction.25 Furthermore, the court stated that the government “cannot suffer harm from an injunction that merely ends an unlawful practice”26 because there is “no public interest in the perpetuation of unlawful agency action.”27 For these reasons, the court granted TikTok a preliminary injunction against the first prohibition, allowing TikTok to remain functional within the United States.28
The government appealed the decision to the U.S. Court of Appeals for the District of Columbia Circuit,29 which remains pending in that court as of November 18, 2020.30 In its brief, the government principally claims that the district court failed to fully grasp the implications of TikTok on national security, and that granting the injunction could allow China to “conduct espionage on millions of U.S. persons.”31
