TikTok Inc. is suing President Donald Trump's administration to challenge efforts to ban the app in the U.S.
The lawsuit, filed Aug. 24 in federal court in California, seeks a declaratory judgment that an Aug. 6 executive order banning "any transaction" related to TikTok's Chinese parent Beijing Byte Dance Telecommunications Co. Ltd. by any person or entity subject to U.S. jurisdiction beginning Sept. 20 is unlawful and unconstitutional. The suit asks the court to invalidate the executive order.
TikTok alleges in its lawsuit that Trump's executive order denied the company due process and misused the authority invoked in the order.
"By banning TikTok with no notice or opportunity to be heard (whether before or after the fact), the executive order violates the due process protections of the Fifth Amendment," TikTok's lawyers wrote its complaint.
TikTok also contested the administration's contention that the company is a national security threat.
TikTok has "taken extraordinary measures to protect the privacy and security of TikTok's U.S. user data, including by having TikTok store such data outside of China (in the United States and Singapore) and by erecting software barriers that help ensure that TikTok stores its U.S. user data separately from the user data of other ByteDance products," the company wrote in its lawsuit filing.
The company alleges the order is also a "gross misappropriation of IEEPA [International Emergency Economic Powers Act] authority."
IEEPA, which was the primary authority invoked in the Aug. 6 executive order, authorizes the U.S. president to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the U.S., to the national security, foreign policy, or economy of the U.S., if the president declares a national emergency with respect to such threat.
Foreign investment experts previously told S&P Global Market Intelligence that successfully challenging such a national security action is an uphill battle.
David Mortlock, chair of the Global Trade & Investment Practice Group at the law firm Willkie Farr & Gallagher LLP, said in an August interview that while some companies have successfully contested process-related issues — such as the amount of notice given to a company, or the process to allow them to dispute whether they meet the criteria specified in an executive order — there has never been a successful challenge to the president's invocation of IEEPA.
David Law, a public law professor at the University of Hong Kong, also said in an interview that it is is "extremely rare" for U.S. courts to overturn presidential actions related to national security taken under the IEEPA.
TikTok was also subject to a separate Aug. 14 executive order that required ByteDance to divest all U.S. assets and data related to TikTok within the U.S. within 90 days, or in mid-November.