Chinanews.com Beijing, August 27th, title: TikTok sued the US government for "seven deadly sins", what is the chance of winning?

　　China News Service reporter Wang Qingkai

　　In response to the executive order signed by US President Trump on August 6, TikTok (TikTok International Edition) filed a complaint with the US judicial authority on the 24th local time (August 25th, Beijing time). The complaint advocates the repeal of Trump's administrative order issued on August 6 and advocates prohibiting the Ministry of Commerce from implementing the administrative order.

　　Previously, on August 6, Trump signed an executive order that would prohibit any person or company under the jurisdiction of the United States from any transaction with TikTok's parent company after 45 days. On August 14, Trump signed another executive order requiring ByteDance to sell or divest the company’s TikTok business in the United States within 90 days.

　　Why does the US government require ByteDance to sell or divest the company's TikTok business in the US? If the relevant US government ban takes effect, what impact will it have on TikTok? What is the chance of TikTok suing the US government?

"Seven Deadly Sins"

　　The content of the complaint provided by TikTok to reporters from China News Agency directly pointed out that the US government's administrative order involved "seven deadly crimes", of which four were unconstitutional and three were ultra vires. such as:

　　The process of the administrative order is unconstitutional: it did not give ByteDance and TikTok notifications for the TikTok ban, and did not provide an opportunity to appeal, which violated the due process provisions of the Fifth Amendment to the US Constitution.

　　The basis of the executive order is illegal and constitutes ultra vires: IEEPA grants the President of the United States the power to restrict and control economic transactions in order to protect national security, foreign policy, and the economy, based on the state of emergency in response to "abnormal conditions and special threats". The administrative order used vague expressions such as "potential", "probable" and "reportedly" throughout the article, and there is no evidence of actual threats caused by byte beating.

　　The executive order compulsory payment of remuneration to the U.S. Treasury Department for the sale of TikTok US assets is unconstitutional: this violates the Fifth Amendment to the Constitution that restricts the government's power to deprive private property.

　　...

　　The complaint revealed that ByteDance has been trying to actively communicate with the U.S. government for nearly a year since October 2019. However, the agency has repeatedly refused to contact Bytedance on its concerns.

　　It is reported that this lawsuit was filed jointly by TikTok and ByteDance. The objects of the lawsuit include US President Trump, US Secretary of Commerce Ross and the US Department of Commerce.

　　At the same time, in response to the previous ban on "prohibiting all transactions with TikTok and ByteDance", ByteDance is also preparing a "shutdown plan."

What is the basis for the US government executive order?

　　The executive order signed by US President Trump on August 6 means that from September 20, any American company or individual will not be able to trade with TikTok's Chinese parent company Bytedance. For example, TikTok will not be able to appear in American App Stores such as Apple AppStore; TikTok will not be able to pay wages to American employees.

　　This is a chronic poison for TikTok. TikTok has more than 100 million users in the United States. If it can't appear in the APP store in the United States, TikTok will gradually be abandoned by users with the iteration of smart phones.

What is the basis for the hegemonic "ban" of the US government?

　　Sun Yuanzhao, chief executive of the Asia Pacific Law Institute (APLI), told reporters from China News Agency that the presidential order issued by the US President to TikTok is based on the revised International Emergency Economic Powers Act (IEEPA) passed in 1977. This bill empowers the president to impose economic sanctions when encountering "unusual and very serious threats", such as "national security is threatened."

　　According to the previous precedent that the President of the United States was authorized by IEEPA to issue an executive order, the conditions for the President to be authorized are as follows: The United States faces "abnormal or special threats" when it is in a war or emergency. Only when these two conditions are met can the president invoke IEEPA to issue an executive order to regulate international economic transactions.

　　According to Lawyer Wang Xinrui, a senior partner of Beijing Anli Law Firm, the "International Emergency Economic Powers Act" (IEEPA) on which the executive order is based is an implementation rule of the "National Emergency Law". Therefore, according to the law, the US Congress has the right to Pass joint resolutions to end the state of emergency, or introduce laws to restrict the president’s power in IEEPA.

　　However, Wang Xinrui told a reporter from China News Agency that from public information, no congressman has proposed a resolution to end the national emergency. This also shows that the US Congress and the President are consistent on this issue, not A state of mutual restraint.

What is the odds?

　　In fact, Tiktok himself knew that on the 25th, he told a reporter from China News Agency that “this is a challenge with little chance of winning”.

　　In Sun Yuanzhao's view, as far as the first administrative order of the US government on August 6 is concerned, there are many flaws in its procedures and substance. However, because the United States adopts a constitutional system with the separation of powers, the courts generally give high respect to the president's behavior in handling national security or foreign affairs, and are unwilling to behave too much to avoid ultra vires and improper interference in administrative power .

　　Sun Yuanzhao said that the president of the United States enjoys very large discretionary powers in this field, and the courts have generally given the president "great respect" in past cases.

　　However, recent cases show that if there are serious flaws in the rights or procedures guaranteed by the constitution, the court may still intervene. Therefore, this case is not completely one-sided.

　　Sun Yuanzhao believes that TikTok should have a chance to compete with the US government. And this case does not rule out the possibility that it will eventually go all the way to the Federal Supreme Court. This means that there is still a long and difficult road to go. "But this also allows TikTok to gain valuable time."

　　In Wang Xinrui's view, ByteDance has little chance of suing the US government, but the litigation procedure is meaningful, it can further clarify the problem, and can also play a role in declaring confidence. "If you silently accept an unfair administrative order, it is tantamount to admitting that you are at a loss. Even if you cannot win in the end, but forcing the other party to clarify the matter and make the rules clearer, it is also good for the company."

　　Sun Yuanzhao predicted that if the Federal District Court agrees to issue an injunction, the US government will immediately appeal. This means that the two parties will spend months entangled on this point before the whole case has entered the real substantive trial stage. This also allows Douyin to gain valuable time. If the district court refuses to give the injunction, Douyin can still appeal, but at this time I am afraid that the order has already taken effect and there is no time.

　　"The best result is of course to overturn or partly overturn the administrative order, but it seems difficult; the worst result is that the court decides to continue to execute the administrative order, and the lawsuit does not have the effect of delaying the procedure," Wang Xinrui said.

The content industry has a long way to go and hinders

　　Before being blocked by the US government's executive order, TikTok achieved explosive growth in the US and globally. At present, TikTok has covered more than 200 countries, downloaded more than 2 billion times worldwide, and has more than 91 million monthly active users in the United States.

　　"The two consecutive bans on Tiktok show that the U.S. government is arrogant and unreasonable." Li Mingde, a professor at Xi'an Jiaotong University and dean of the School of Journalism and New Media, told reporters from China News Agency that managing the Internet according to law is a common practice in all countries, but the United States The reason given by the government's executive order is national security, which is large, unjustified and somewhat far-fetched.

　　In fact, for the normal operation of enterprises, TikTok has been actively proposing solutions to reduce US national security concerns. For example, the industry’s top security measures have been adopted in platform governance to ensure user privacy and data security, and a transparency center has also been established so that internal and external experts can observe TikTok’s content review and check the algorithm source code in real time.

　　"This kind of transparent behavior is unmatched by other major social platforms, and makes TikTok ahead of the industry." The complaint pointed out that security beyond the industry did not help TikTok escape deliberate siege.

　　In Li Mingde's view, behind the high-sounding reason is the distrust of Chinese companies, and it is also a kind of political manipulation: all technologies from China that are superior to the United States are considered grudges and are within the scope of "decoupling." Although it has a high usage rate and credibility among the American people. "This also corrects a long-standing stereotype: technology has national boundaries and application is politics."

　　In recent years, China's network technology has developed by leaps and bounds, and various software developments and applications for different consumer classes have surged. However, the software is often closely tied to the content and mutually applicable. Li Mingde believes that Tiktok's restriction in the United States will affect China's content industry going overseas. After all, there are a large number of active followers behind the United States, which play a role of demonstration and guidance.

　　Wu Fei, director of the Center for Public Diplomacy and Strategic Communication of Zhejiang University, said that the TikTok incident has sounded a wake-up call for China, that is, if TikTok is kicked out of the United States, it may mean that China's future globalization of such industries will be very difficult.

　　TikTok told a reporter from China News Agency that the company has made the worst plan to shut down its US business. Because the shutdown involves more than 1,500 TikTok employees and thousands of partners in the United States, the company is intensively assessing the damage to the legitimate rights and interests of employees, users, and partners after the shutdown, and simultaneously preparing protection plans. (Finish)