Here We Go Again: Judge Blocks TikTok Ban Following Halt of WeChat Ban

On Sunday, Judge Carl J. Nichols of the U.S. District Court for the District of Columbia blocked the Trump administration from banning TikTok, providing a temporary reprieve for the popular social media platform, paralleling a U.S. Judge blocking the Trump administration’s order banning WeChat last Monday.

Judge Nichols noted that exceptions for “information services” and “personal communication” apply to TikTok. The judge also found that “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.” The court stated that the government’s prohibitions are indirect regulations of “personal communications” or “the exchange of ‘information or information materials.’”

The ban, which was set to occur at midnight on Sunday, came after the President’s Executive Orders banned transactions with TikTok and WeChat claiming that TikTok collects user information, including internet and network activity, location data, and search histories, and is a national security threat. The ban would prevent downloads, updates, and maintenance of the app, effectively rendering the app useless. 

TikTok sued the administration over the Executive Order, claiming that the prohibition exceeded the administration’s authority under the the International Emergency Economic Powers Act (IEEPA), violated the Administrative Procedure Act (APA), and was unconstitutional, citing the Fourth and Fifth Amendments. The lawsuit was voluntarily dismissed following the government’s tentative approval of the deal between TikTok, Oracle, and Walmart. 

TikTok argued that the ban hindered free speech and due process. The court considered the likelihood of success and found that the plaintiffs “have demonstrated that the Secretary’s prohibitions likely exceed the lawful bounds prescribed by IEEPA,” and granted preliminary relief. Judge Nichols found that President Trump likely exceeded his authority because, under the IEEPA, the president cannot regulate “importation or exportation” of information or personal communications. TikTok proffered that the ban and its identified transactions “represent, at minimum, the indirect regulation of informational materials and personal communications.” 

According to the opinion, TikTok also demonstrated irreparable harm through the ban, for example, by “halting the influx of new users, likely driving those users to alternative platforms and eroding TikTok’s competitive position.” Additionally, TikTok cited that the uncertainty surrounding the platform’s future has led users to go to other platforms. TikTok also showed that it would suffer harm with its business partners and advertisers. Therefore, the judge found that if the first prohibition occurred as scheduled, “but was later held to be unlawful, TikTok would not be able to recover the harm to its user base.” 

The court also said that while the government has demonstrated that China poses a national security threat, “whether the prohibitions (on TikTok) are the only effective way to address that threat, remains less substantive.” According to the judge, TikTok is likely to succeed on its IEEPA claims and the government “cannot suffer harm from an injunction that merely ends an unlawful practice or reads a statute as required.” Thus, the balance of equities and public interest weigh in TikTok’s favor.

Consequently, the judge granted TikTok’s motion for preliminary injunction as it pertains to the first prohibition that was set to go into effect later on Sunday. However, the judge denied TikTok’s request to extend the November 12 deadline to allow it to resolve the administration’s national security concerns, specifically creating or divesting to an American company.

“We will continue defending our rights for the benefit of our community and employees,” a spokesperson for TikTok said. “At the same time, we will also maintain our ongoing dialogue with the government to turn our proposal, which the President gave his preliminary approval to last weekend, into an agreement.”

TikTok is represented by Covington & Burling LLP. The Trump administration is represented by the Federal Programs Branch in the Civil Division of the Department of Justice.