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Can TikTok Achieve A Temporary Victory?

Source:Iris Liang Time:2020-9-9 16:48:13

On August 23, TikTok applied for a temporary injunction in the Federal District Court of California. An injunction is a very special remedy used by the US Federal Court to change or maintain the status quo. In order to ensure judicial justice or avoid irreparable losses to the plaintiff, the judge will require a party to do or stop doing certain actions. Whether the prohibition order is made or not depends entirely on the judge's judgment on the merits of the case.

   Whether a temporary restraining order can be obtained is of great significance to TikTok. The temporary injunction can delay TikTok acquisition negotiations until after the U.S. election, thereby obtaining higher valuation consideration for TikTok. If TikTok cannot escape the fate of being acquired in the end, it can only be sold at the price of cabbage under the ban of the administrative order; but if the court passes a temporary ban, then TikTok's development prospects and market valuation will be higher .

   Article 65 of the US Federal Civil Procedure Act stipulates the notification method, form and scope of the prohibition order, but does not specify the specific standards for making the prohibition order. The federal courts of each state establish specific standards for making injunctions in the form of judicial precedents. The competent court in the TikTok case is the California Federal District Court. The criteria for preliminary injunctions established by the court are: first, if the injunction is not made, the plaintiff will suffer irreparable losses; second, the plaintiff has the possibility of winning; Third, in consideration of equity, the plaintiff’s possible losses will exceed the losses caused to the defendant by the prohibition order; fourth, the prohibition order is in the public interest.

   (1) If a temporary injunction is not made, TikTok will suffer irreparable losses

"If TikTok does not find a U.S. buyer within 45 days, it will be banned." This executive order issued by Trump is likely to cause irreparable damage to TikTok. It should be clear that whether to pass a temporary ban is considered. The point is that the damage is difficult to repair, not whether the damage is serious, although sometimes both exist at the same time.

   Irreparable damage refers to the difficulty in restoring monetary compensation to the original state before the damage. The irreparable damage caused by Trump's ban to TikTok is mainly due to three points: first it damages TikTok's right to petition the government for grievances, secondly it deprives TikTok users of their freedom of speech, and secondly it weakens TikTok's competitiveness. The United States has established a precedent that the short-term deprivation of the freedom granted by the First Amendment to the Constitution is irreparable damage. Therefore, if TikTok's right to petition the government and freedom of speech are deprived, it is obviously irreparable damage.

   (2) In this case, certain allegations made by TikTok have the possibility of winning

   In the allegation, TikTok claimed that the executive order violated the due process clause in the Fifth Amendment. According to precedent, the US Federal Court has the power to review the constitutionality of executive orders. Although presidential orders involving diplomacy and national security are generally not justiciable, the procedures for making these administrative orders do not involve judgments on diplomacy and national security, so they are justiciable.



  In the Washington State sued the Trump administration, the plaintiff believed that an executive order of the U.S. government against refugees and foreigners violated the due process provisions of the Fifth Amendment. In this regard, the U.S. Court of Appeals for the Ninth Circuit (this court is the Court of Appeals of the California Federal District Court) held that the government failed to prove that the executive order met the requirements of the due process clause—it failed to notify and restrict the individual’s ability to travel. Hearing. Therefore, the Court of Appeal upheld the decision of the court of first instance to impose a temporary injunction against the administrative order.

In this case, the executive order allowed the Secretary of Commerce to prohibit anyone from "any transaction" with ByteDance, TikTok or any other ByteDance subsidiary regarding any property within the jurisdiction of the United States, thereby depriving TikTok and ByteDance of property. So far, the plaintiff has not received any notice from the government, and the government has not provided the plaintiff with any opportunity to respond to the administrative order.

   There is no doubt that the company has a legal personality and is protected by the Fifth Amendment to the Constitution. TikTok should at least be aware of the non-confidential evidence that the US government relies on for action and should have the opportunity to refute such evidence. In this case, the U.S. government did not give TikTok any opportunity to present opinions, present evidence, or defend itself. This deviates from the due process contained in the Fifth Amendment and is not in conformity with the Constitution. This will become a very important point for TikTok in legal offenses and defenses and the possibility of victory.

  Although the due process clause contains both substantive and procedural aspects, the US Supreme Court held that if important procedures are not followed, there is no need to analyze the specific content of the administrative order. Therefore, we can think that the administrative order may be unconstitutional because it deprived the plaintiff of the property rights in the absence of any due process.

   (3) In consideration of equity, TikTok's possible losses will exceed the losses caused to the United States by the prohibition order

   The California Federal District Court will weigh the interests of both the plaintiff and the defendant in this case. Specifically, in relevant cases, once the "national security" interests are specific, clear, and convincing, the courts will focus on measuring national security interests. Although the judiciary insists that it has the power to rule on the challenge of the constitution to the executive order, in practice, the court largely respects the president's immigration order and other national security policy decisions, and will not "pierce the national security veil." However, the sanctions against social software TikTok may have expanded application of the National Emergency Powers Act, which may lead to strict review by the court.

   However, TikTok does not pose a specific, clear, and convincing threat to the national security interests of the United States. Whether it is the risk of TikTok US user data leakage or the TikTok review mechanism, the United States has no clear evidence to prove this. This is only a unilateral assumption of the United States. Although there are many accusations of "national security" in the United States, they are still "usual" rather than "specific" and "clear" due to the lack of specific evidence to support each item. On the contrary, if the decree is passed, TikTok will be deprived of its legal business in the United States, and TikTok will suffer irreparable losses.

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   (4) A temporary injunction made by the California District Court will be in the public interest

   The California District Court must also consider whether issuing an injunction is in the public interest. Specifically, in this case, the court will consider whether issuing an injunction is beneficial to the public interest by measuring the interests of national security and users’ freedom of speech.

   The Ninth Circuit of the Court of Appeals of the California Federal District Court emphasized that the protection of constitutional rights is always in the public interest (Melendres v. Arpaio). In this case, the accused administrative order is not in the public interest, because the TikTok application is a mobile phone application that transmits and stores personal communications and information materials (including the user’s personal information and short video messages created and circulated on the Internet) , With more than 100 million active users in the United States, administrative orders will inevitably restrict personal communication and the transmission of information materials.

  Under the specific background of national security in this case, the court also needs to weigh the interests of national security when considering the public interest. The case shows that if the violation of constitutional rights is based on discrimination based on race, nationality, etc., the preliminary injunction will be more easily supported. In this case, if the court believes that the Trump administration is not based on good faith, such as the allegations in the Bytedance indictment. For national security considerations, it is to suppress companies with a Chinese background (which violates the constitution based on nationality), thereby benefiting their performance in the 2020 US presidential election, and the court is more likely to support the preliminary injunction.

   According to the four considerations of the interim injunction in the California Federal District Court, TikTok is very likely to obtain the interim injunction in the California court, a key step to victory.


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Iris Liang
SEKO Machinery & Technology Co., Ltd
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