A federal appeals court has upheld a law requiring the social media platform TikTok to sever relations with its parent company ByteDance or lose access to the US market.
A panel of three judges from the U.S. Court of Appeals for the District of Columbia Circuit unanimously sided with the Justice Department in declining to review the petition for relief from TikTok and ByteDance, its Chinese parent company, saying the law is constitutional.
“We conclude the portions of the Act the petitioners have standing to challenge, that is the provisions concerning TikTok and its related entities, survive constitutional scrutiny,” Senior Judge Douglas Ginsburg wrote in the majority opinion. “We therefore deny the petitions.”
Congress approved a foreign assistance package in April that included provisions giving TikTok nine months to sever ties with ByteDance or lose access to app stores and web-hosting services in the U.S. President Biden quickly signed the bill into law, and it is set to take effect on Jan. 19, with the possibility of a one-time 90-day delay granted by the president if a sale is in progress by then.
This controversy has its roots in Trump’s first administration when he signed an executive order banning federal agencies and entities from using the app.
President Trump separately invoked his powers under the International Emergency Economic Powers Act (IEEPA) and the National Emergencies Act to address “the threat posed by one mobile application in particular, TikTok.” Addressing the Threat Posed by TikTok, Exec. Order No. 13942, 85 Fed. Reg. 48637, 48637 (Aug. 6, 2020). President Trump prohibited certain “transactions” with ByteDance or its subsidiaries, id. at 48638, and the Secretary of Commerce later published a list of prohibited transactions, 85 Fed. Reg. 60061 (Sept. 24, 2020). Litigation ensued, and two courts enjoined the President’s prohibitions under the IEEPA as exceeding his authority under that law. TikTok Inc. v. Trump, 507 F. Supp. 3d 92, 102 (D.D.C. 2020); Maryland v. Trump, 498 F. Supp. 3d 624, 638, 641–45 (E.D. Pa. 2020).
In 2021, President Biden withdrew President Trump’s IEEPA executive order and issued a new one. In the new order, the President identified the PRC as “a foreign adversary” that “continues to threaten the national security, foreign policy, and economy of the United States” through its control of “software applications” used in the United States. Protecting Americans’ Sensitive Data From Foreign Adversaries, Exec. Order No. 14034, 86 Fed. Reg. 31423, 31423 (June 9, 2021). President Biden elaborated that “software applications” can provide foreign adversaries with “vast swaths of information from users,” and that the PRC’s “access to large repositories” of such data “presents a significant risk.” Id. President Biden directed several executive agencies to provide risk mitigation options, and he asked for recommended “executive and legislative actions” to counter risks “associated with connected software applications that are designed, developed, manufactured, or supplied by persons owned or controlled by, or subject to the jurisdiction or direction of, a foreign adversary.” Id. The following year, President Biden signed into law a bill prohibiting the use of TikTok on government devices. See generally Pub. L. No. 117-328, div. R, 136 Stat. 5258 (2022).
Good it makes the brain stupid!