Case 1:20-cv-02658-CJN Document 30 Filed 09/27/20 Page 1 of 18
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`TIKTOK INC., et al.,
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`Plaintiffs,
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`v.
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`DONALD J. TRUMP, President of the United
`States, et. al.,
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`Defendants.
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` Civil Action No. 1:20-cv-02658 (CJN)
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`MEMORANDUM OPINION
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`On May 15, 2019, acting pursuant to the International Emergency Economic Powers Act
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`(“IEEPA”), 50 U.S.C. §§ 1701–08, among other authorities, the President declared a national
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`emergency relating to the “unrestricted acquisition or use in the United States of information and
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`communications technology or services . . . supplied by persons owned by, controlled by, or
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`subject to the jurisdiction or direction of foreign adversaries.” On August 6, 2020, the President
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`invoked that national emergency declaration; determined that additional steps were necessary with
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`respect to Plaintiffs TikTok and its Beijing-based parent company ByteDance; provided that
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`certain transactions with ByteDance or its subsidiaries would be prohibited; and directed the
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`Secretary of Commerce to identify the prohibited transactions within forty-five days. On
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`September 18, 2020, the Secretary published a list of five transactions to be prohibited with respect
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`to ByteDance and its operations within the United States, and on September 19, revised the
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`implementation date for one of the sets of prohibitions and re-published the list of prohibited
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`transactions.
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`The first of those five prohibitions goes into effect at 11:59 p.m. today. On September 18,
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`2020, Plaintiffs filed this lawsuit alleging that the prohibitions exceed the President’s and
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`Secretary’s authority under IEEPA, violate the Administrative Procedure Act (“APA”), and are
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`unconstitutional under the First and Fifth Amendments and the Takings Clause. On September
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`23, Plaintiffs moved for preliminary injunctive relief, arguing that they have a likelihood of success
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`on their claims and that, absent an injunction, they will suffer irreparable harm. Pls.’ Mem. Supp.
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`Mot. Prelim. Inj., ECF No. 15-1, 15 (“Pls.’ P.I. Mot.”). For the reasons discussed below, Plaintiffs’
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`Motion is granted as to the prohibition that takes effect tonight.
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`I. BACKGROUND
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`The United States has long used economic sanctions to prohibit transactions that threaten
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`national security. In 1977, Congress enacted IEEPA, which provides peacetime authority to the
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`President “to deal with any unusual and extraordinary threat, which has its source in whole or
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`substantial part outside the United States, to the national security, foreign policy, or economy of
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`the United States, if the President declares a national emergency with respect to such threat.” 50
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`U.S.C. § 1701(a). Once the President has declared such an emergency, the President is empowered
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`to:
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`[R]egulate, direct and compel, nullify, void, prevent or prohibit, any . . . transfer
`. . . of, or dealing in, or exercising any right, power, or privilege with respect to, or
`transactions involving, any property in which any foreign country or a national
`thereof has any interest . . . with respect to any property, subject to the jurisdiction
`of the United States[.]
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`Id. § 1702(a)(1)(B).
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`On May 15, 2019, the President issued Executive Order 13873, Securing the Information
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`and Communications Technology and Services Supply Chain, 84 Fed. Reg. 22689 (May 15, 2019)
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`(“ICTS Order”). The President found that the widespread use of “communications technology”
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`that may be exploited by foreign adversaries was creating an “extraordinary threat to the national
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`security . . . of the United States.” Id. The President therefore declared a national emergency with
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`respect to that threat and determined to prohibit certain transactions with foreign countries or
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`foreign nationals that pose risks to the national security of the United States. A year later, the
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`President renewed that declaration, highlighting the pervasive threat posed by the close ties
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`between China-based technology firms and the government of the People’s Republic of China
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`(“PRC”). See Continuation of the National Emergency With Respect to Securing the Information
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`and Communications Technology and Services Supply Chain, 85 Fed. Reg. 29321 (May 13, 2020).
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`On August 6, 2020, the President invoked his powers under IEEPA and the national
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`emergency declared in the ICTS Order by identifying TikTok Inc. as a source of emerging threats
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`given its foreign ownership. See Exec. Order No. 13942, Addressing the Threat Posed by TikTok,
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`and Taking Additional Steps To Address the National Emergency With Respect to the Information
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`and Communications Technology and Services Supply Chain, 85 Fed. Reg. 48637 (“TikTok
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`Order”). TikTok is a short-loop video sharing app presently used by over 100 million Americans.
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`Compl., ECF No. 1, ¶ 1. The President determined that TikTok “automatically captures vast
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`swaths of information from its users, including internet and other network activity information
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`such as location data and browsing and search histories.” TikTok Order.
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`The President concluded that TikTok’s foreign ownership and data collection pose a risk
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`that the Chinese Communist Party (“CCP”) can “access . . . Americans’ personal and proprietary
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`information—potentially allowing China to track the locations of Federal employees and
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`contractors, build dossiers of personal information for blackmail, and conduct corporate
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`espionage.” Id. He also concluded that there is a risk of the CCP using TikTok to “censor[]
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`content that the [CCP] deems politically sensitive,” id., and “for disinformation campaigns that
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`benefit the [CCP], such as when TikTok videos spread debunked conspiracy theories about the
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`origins of the 2019 Novel Coronavirus.” Id.
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`To mitigate those risks, the President directed the Secretary of the U.S. Department of
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`Commerce to identify a list of prohibited transactions with “ByteDance . . . or its subsidiaries,”
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`including TikTok. Id. at 48637–38. The President also separately ordered ByteDance to divest
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`itself of TikTok’s U.S. operations, including any interest it might have in U.S. user data. See
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`Regarding the Acquisition of Musical.ly by ByteDance Ltd., 85 Fed. Reg. 51297 (Aug. 14, 2020)
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`(“Divestment Order”).
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`Acting pursuant to the TikTok Order, on September 18, 2020, the Secretary of Commerce
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`published a list of five sets of prohibited transactions. The Secretary later revised the
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`implementation date for one of prohibitions. As a result, the list now prohibits:
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`1. Any provision of services, occurring on or after 11:59 p.m. eastern standard time
`on September 27, 2020, to distribute or maintain the TikTok mobile application,
`constituent code, or application updates through an online mobile application
`store[;]
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`2. Any provision of internet hosting services, occurring on or after 11:59 p.m.
`eastern standard time on November 12, 2020, enabling the functioning or
`optimization of the TikTok mobile application[;]
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`3. Any provision of content delivery network services, occurring on or after 11:59
`p.m. eastern standard time on November 12, 2020, enabling the functioning or
`optimization of the TikTok mobile application[;]
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`4. Any provision of directly contracted or arranged internet transit or peering
`services, occurring on or after 11:59 p.m. eastern standard time on November 12,
`2020, enabling the functioning or optimization of the TikTok mobile application[;
`and]
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`5. Any utilization, occurring on or after 11:59 p.m. eastern standard time on
`November 12, 2020, of the TikTok mobile application’s constituent code,
`functions, or services in the functioning of software or services developed and/or
`accessible within the land and maritime borders of the United States and its
`territories[.]
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`U.S. Dep’t of Commerce, Identification of Prohibited Transactions to Implement Executive Order
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`13942 and Address the Threat Posed by TikTok and the National Emergency with Respect to the
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`Information and Communications Technology and Services Supply Chain, 85 Fed. Reg. 60061-01
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`(Sept. 24, 2020) (“Commerce Identification”).
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`Before issuing those prohibited transactions, the Secretary reviewed and relied on a
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`decision memorandum that assessed the threats posed by ByteDance and TikTok. U.S. Dep’t of
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`Commerce, Mem. for the Sec’y, Proposed Prohibited Transactions Related to TikTok Pursuant to
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`Executive Order 13942 (Sept. 17, 2020), ECF No. 22-1 (“Commerce Memo”); see also Defs.’
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`Mem. Opp’n Pls.’ P.I. Mot., ECF No. 22, 2 (“Defs.’ Opp’n”). In particular, the Secretary of
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`Commerce found that the PRC is “building massive databases of Americans’ personal
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`information” to help the “Chinese government to further its intelligence-gathering and to
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`understand more about who to target for espionage, whether electronically or via human
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`recruitment.” Commerce Memo, ECF No. 22-1, 6.
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`The Secretary also found that the CCP will exploit “close ties” with ByteDance to further
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`its foreign policy agenda. See id. 7–9. ByteDance is headquartered in Beijing and remains subject
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`to the PRC’s National Intelligence Law, which “permits Chinese intelligence institutions” to “take
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`control of” any China-based firm’s “facilities” and “communications equipment.” See id. at 10.
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`ByteDance has signed a cooperation agreement with a PRC security agency, closed one of its
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`media platforms in response to CCP demands, and (as of August 2020) placed over 130 CCP
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`committee members in management positions throughout the company. Id. at 7, 11; see also Defs.’
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`Opp’n, ECF No. 22, 7–8. And because “ByteDance is subject to PRC jurisdiction, [and] PRC laws
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`can compel cooperation from ByteDance, regardless of whether ByteDance’s subsidiaries are
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`located outside the territory of the PRC,” the data held by ByteDance’s subsidiary companies may
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`also be extracted by the PRC. Commerce Memo, ECF No. 22-1, 19.
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`As ByteDance owns TikTok, the Secretary determined that TikTok’s Terms of Service and
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`Privacy Policy for new users allow TikTok to collect and “share [a user’s] information with
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`[ByteDance]” and the PRC “to respond to government inquiries.” Id. at 8–9; see also Ex. 8, ECF
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`No. 22-8, 6. The information that TikTok gathers is substantial, including:
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`1) registration information, such as age, username and password, language, and email or
`phone number; 2) profile information, such as name, social media account information,
`and profile image; 3) user-generated content, including comments, photographs, videos,
`and virtual item videos that you choose to upload or broadcast on the platform; 4)
`payment information, such as PayPal or other third-party payment information (where
`required for the purpose of payment); 5) phone and social network contacts (names and
`profiles); 6) opt-in choices and communication preferences; 7) information in
`correspondence users send to TikTok; and 8) information sent by users through surveys
`or participation in challenges, sweepstakes, or contests such as gender, age, likeness, and
`preferences.
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`Defs.’ Opp’n, ECF No. 22, 8. The Secretary also concluded that the TikTok data of U.S. users is
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`especially vulnerable because TikTok keeps a backup of all its U.S. data in Singapore with a China-
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`based company called Alibaba. Commerce Memo [Sealed], ECF No. 21-1, 15. Like ByteDance,
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`“Alibaba is a Chinese company . . . beholden to PRC laws that require assistance in surveillance
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`and intelligence operations.” Id.
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`Rather than implement all five prohibitions at once, the Secretary opted for a “phased
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`approach.” Id. at 22. The first prohibition goes into effect tonight, while the rest become effective
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`on November 12, 2020. Commerce Memo, ECF No. 22-1, 22. The Secretary explained that this
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`phased approach would “mitigate some national security risk immediately,” while giving other
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`Executive actors freedom to negotiate a possible divestment of ByteDance’s interest in TikTok
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`before the November deadline. Commerce Memo [Sealed], ECF No. 21-1, 22. Because the first
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`prohibition would, in practice, stop new U.S.-based users from downloading TikTok and block
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`existing U.S. users from updating the app, the Secretary viewed the first prohibition as the “easiest
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`to implement” while also having “the biggest impact in mitigating national security risks.” Id.
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`The Secretary thus anticipated substantial reductions to TikTok’s “national security risk” from the
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`first prohibition, while giving TikTok and other stakeholders “time to prepare” for the four other
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`prohibited transactions. Id. at 22–23.
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`The Secretary’s Order states that these five prohibitions “only apply to the parties to
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`business-to-business transactions.” Commerce Identification, 85 Fed. Reg. at 60062. It also states
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`that the prohibitions “do not apply to . . . [t]he exchange . . . of personal or business information”
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`shared among TikTok users on the app, id, and that none of the prohibitions bars transactions
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`related to restructuring TikTok in accordance with the President’s August 14 Divestment Order.
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`On September 18, 2020, Plaintiffs filed this lawsuit alleging that the government’s actions
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`violate the Administrative Procedure Act (Count One), the First Amendment (Count Two), and
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`the Due Process Clause of the Fifth Amendment; exceed the President’s and Secretary’s authority
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`under IEEPA (Counts Four-Six); and violate the Takings Clause of the Fifth Amendment (Count
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`Seven). Compl., ECF No. 1. On September 23, Plaintiffs moved for preliminary injunctive relief,
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`arguing that they have a likelihood of success on some of these claims and that, absent an
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`injunction, they will suffer irreparable harm. Pls.’ P.I. Mot., ECF No. 15-1, 15–36. Following
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`expedited briefing on the Motion, ECF Nos. 15, 21–22, 26, the Court heard oral argument on
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`September 27, 2020.
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`II. LEGAL STANDARD
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`“A preliminary injunction is an extraordinary remedy that should be granted only when the
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`party seeking the relief, by a clear showing, carries the burden of persuasion.” Cobell v. Norton,
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`391 F.3d 251, 258 (D.C. Cir. 2004) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)). A
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`plaintiff seeking such relief must demonstrate that (1) it has a likelihood of succeeding on the
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`merits, (2) it faces irreparable harm if an injunction does not issue, (3) the balance of equities
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`favors relief, and (4) an injunction is in the public interest. Winter v. Nat’l Res. Def. Council, Inc.,
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`555 U.S. 7, 20 (2008). When “the Government is the opposing party,” the assessment of “harm to
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`the opposing party” and “the public interest” merge. Nken v. Holder, 556 U.S. 418, 435 (2009).
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`Plaintiffs must make “a clear showing that” they are “entitled to such relief.” Winter, 555
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`U.S. at 22. And while the D.C. Circuit has not yet directly held that Plaintiffs must make a clear
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`showing on each of the four Winter factors, considered dicta in this jurisdiction favors that
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`approach. See In re Navy Chaplaincy, 738 F.3d 425, 428 (D.C. Cir. 2013) (demanding proof on
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`all four prongs); Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1296 (Kavanaugh, J.,
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`concurring) (observing that, after Winter, “the old sliding-scale approach to preliminary
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`injunctions—under which a very strong likelihood of success could make up for a failure to show
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`a likelihood of irreparable harm, . . . is no longer . . . viable” (internal quotation and citation
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`omitted)).
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`II. ANALYSIS
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`A. Likelihood of Success on the Merits
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`The Court begins with the “most important factor”—Plaintiffs’ likelihood of success on
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`the merits. Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014). As the Plaintiffs have
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`demonstrated that the Secretary’s prohibitions likely exceed the lawful bounds proscribed by
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`IEEPA, the Court finds that this first factor weighs in favor of granting preliminary relief.
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`As noted above, IEEPA contains a broad grant of authority to declare national emergencies
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`and to prohibit certain transactions with foreign countries or foreign nationals that pose risks to
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`the national security of the United States. But IEEPA also contains two express limitations
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`relevant here: the “authority granted to the President . . . does not include the authority to regulate
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`or prohibit, directly or indirectly” either (a) the importation or exportation of “information or
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`informational materials”; or (b) “personal communication[s], which do[] not involve a transfer of
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`anything of value.” 50 U.S.C. § 1702(b)(1), (3) (emphasis added). Congress has stressed that
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`these limitations be given “broad scope.” Kalantari v. NITV, Inc., 352 F.3d 1202, 1205 (9th Cir.
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`2003) (quoting H.R. Conf. Rep. No. 103–482, at 239 (1994)); see also See United States v.
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`Amirnazmi, 645 F.3d 564, 585 (3d Cir. 2011) (Congress added the words “directly or indirectly”
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`to § 1702(b) to ensure that the limitation would “have a broad scope.”). Plaintiffs contend that the
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`Secretary’s prohibitions on the transactions identified in the Commerce Identification represent, at
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`a minimum, the indirect regulation of informational materials and personal communications. See
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`Pls.’ P.I. Mot., ECF No. 15-1, 19.
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`1. Informational Materials
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`IEEPA’s informational-materials limitation deprives the President of authority to regulate
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`or prohibit—“directly or indirectly,” “regardless of format or medium of transmission,” and
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`“whether commercial or otherwise”—the importation or exportation of “informational materials.”
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`50 U.S.C. § 1702(b)(3). The phrase “informational materials” is immediately followed by a non-
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`exhaustive list of examples, “including but not limited to, publications, films, . . . photographs, . . .
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`artworks, . . . and news wire feeds.” 50 U.S.C. § 1702(b)(3).
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`Plaintiffs argue that the Secretary’s prohibitions are covered by this express carveout
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`because the prohibitions will prevent U.S. users—both new U.S. users starting today at 11:59 p.m.,
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`and then all U.S. users on November 12—from sharing and receiving content on TikTok. Pls.’
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`P.I. Mot., ECF No. 15-1, 18–19; see also Pappas Decl., ECF No. 15-3, ¶¶ 4, 20. They argue that
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`over 100 million Americans currently use TikTok to share their films, photographs, art, and news
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`with users across international borders, Pappas Decl., ECF No. 15-3, ¶ 20, and that “U.S. content
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`can comprise as much as 60% of the content in TikTok’s non-U.S. markets.” Id. This content,
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`Plaintiffs argue, constitutes “informational materials” the importation and exportation of which
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`cannot be regulated, either indirectly or directly, pursuant to IEEPA. Reply, ECF No. 26, 14.
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`Plaintiffs bolster their plain-meaning analysis by comparing TikTok to a “news wire feed,”
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`50 U.S.C. § 1702(b)(3), which the Oxford English Dictionary defines as “a service which transmits
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`up-to-the-minute news, usually electronically (especially via the internet), to news media and the
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`general
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`public.”
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`Newswire,
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`Oxford
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`English
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`Dictionary,
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`available
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`at
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`www.oed.com/view/Entry/255044. Like a news wire feed, TikTok facilitates the transmission of
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`news but with a bonus: it also lets users publish other items on the list of informational materials,
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`like short videos, photographs, and art. Pls.’ P.I. Mot., ECF No. 15-1, 18.
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`In response, the government first argues that the Secretary has “simply prohibit[ed]
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`business-to-business economic transactions that support certain aspects of TikTok’s U.S.
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`operations.” Defs.’ Opp’n, ECF No. 22, 18. The Secretary has not, the government argues,
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`“prohibit[ed] any importing or exporting of information,” or taken any action with respect “to
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`TikTok users themselves.” Id.
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`But that argument fails to grapple with IEEPA’s text. Section 1702(b)(3) provides that
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`IEEPA’s grant of authority “does not include the authority to regulate or prohibit, directly or
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`indirectly,” the cross-border transmission of “information and informational materials.” 50 U.S.C.
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`§ 1702(b)(3). The content exchanged by TikTok users constitutes “information and informational
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`materials”; indeed, much of that content appears to be (or to be analogous to) “publications, films,
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`. . . photographs, . . . artworks, . . . and news wire feeds.” Id. And the purpose and effect of the
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`Secretary’s prohibitions is to limit, and ultimately reduce to zero, the number of U.S. users who
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`can comment on the platform and have their personal data on TikTok. Commerce Memo, ECF
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`No. 22-1, 22. At a minimum, then, the Secretary’s prohibitions “indirectly” “regulate” the
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`transmission of “informational materials” by U.S. persons. Id.
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`Moreover, Section 1702(b)(3)’s express limitation applies to “commercial” informational
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`materials. If prohibitions on business-to-business transactions could not constitute the regulation
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`of “informational materials,” then there would have been no reason for Congress to include the
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`word “commercial” when defining the scope of § 1702(b)(3)’s limitation. United States v.
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`Menasche, 348 U.S. 528, 538–39 (1955) (directing courts “to give effect, if possible, to every
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`clause and word of a statue”).
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`To be sure, TikTok (like a news wire, which is expressly identified in IEEPA’s carveout)
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`is primarily a conduit of “informational materials.” In that sense, it is (among other things) a
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`“medium of transmission,” and IEEPA provides that this carveout applies “regardless of format or
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`medium of transmission.” 50 U.S.C. § 1702(b)(3). That is especially true where, as here, the
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`transmitting medium is inextricably bound up with and exists primarily to share protected
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`informational materials. 1
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`1 At oral argument, the government contended that the D.C. Circuit has read IEEPA’s indirect
`regulation language as barring only executive actions targeting “informational materials”
`themselves, as opposed to prohibitions aimed elsewhere that merely burden “trade in
`informational materials.” See Hr’n Tr., Sept. 27, 2020 (forthcoming) (citing Walsh v. Brady, 927
`F.2d 1229, 1232 (D.C. Cir. 1991)). Not so. In Walsh, the plaintiff alleged that certain Treasury
`Department travel restrictions exceeded IEEPA’s informational-materials limitation by indirectly
`burdening his trade in Cuban posters. 927 F.2d at 1230–31. The plaintiff argued that a previous
`version of § 1702(b)(3) “extinguish[ed] any executive authority to use [IEEPA] to impose any
`regulation that ‘significantly burdens’ trade in informational materials.” Id. at 1232 (emphasis
`added). The Court of Appeals rejected that novel reading, affording deference to an agency
`assessment that “[s]uch travel was considered too tangential to the actual physical importation
`and exportation of informational materials to fall within the language of [§ 1702(b)(3)].” Id. at
`1231 (emphasis added). Here, by contrast, the relationship between the Secretary’s prohibitions
`and the informational materials U.S. users post on TikTok is neither “tangential” nor generic.
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`Defendants next contend that Plaintiffs’ plain-language approach would create an IEEPA-
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`free zone that “Congress could not have intended.” Defs.’ Opp’n, ECF No. 22, 18. As the
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`government puts it, “it is unfathomable that Congress intended through section 1702(b) to limit
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`the President’s ability to prevent a foreign government . . . from dominating the country’s data
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`services. Yet that absurd conclusion would necessarily flow from interpreting subsection (b)(3)
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`in the way Plaintiffs suggest.” Id.
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`There is something to this argument, especially as foreign adversaries’ use of information
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`and data (and the United States’ efforts to respond to and combat those efforts) becomes ever more
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`important. But it does not find support in the text of the statute. In fact, subsection (b)(3)
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`forecloses even the indirect regulation of news wires, another parallel kind of information medium
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`that foreign adversaries could exploit to promote misinformation. To be sure, TikTok’s users share
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`more than just news, but that fact makes it more likely that the prohibitions here fit within the plain
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`meaning of subsection (b)(3).2
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`Finally, the government proposes a novel reading of the Espionage Act. See Defs.’ Opp’n,
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`ECF No. 22, 20 (citing 18 U.S.C. § 794(a)). Section 1702(b)(3) contains an exception to its
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`exception, so to speak, and permits the regulation of informational materials, “with respect to . . .
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`See id. at 1231, 1233. TikTok exists to facilitate communication and the Secretary’s prohibitions
`aim to stop it.
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`2 The government argues in passing that OFAC excludes “material not fully created and in
`existence at the date of the transactions” from the scope of the phrase “informational
`materials.” Defs.’ Opp’n, ECF No. 22, 19 (citing 31 C.F.R.§ 560.210(c)(2)). Even assuming
`OFAC’s exclusion merits deference in this context, it would not allow the Secretary to
`effectively ban TikTok. Plaintiffs have shown that TikTok users can film and design content
`outside of TikTok’s ecosystem (on the iPhone Camera app, for example) to post later. See
`Reply, ECF No. 26, 16 n.5. When users share pre-made videos, those videos are necessarily
`“fully created and in existence” before they reach TikTok, which places them outside of OFAC’s
`exclusion.
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`acts . . . prohibited by chapter 37 of Title 18.” That Title authorizes life imprisonment or the death
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`penalty for those who share U.S. defense secrets (especially classified government materials) with
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`foreign adversaries. See Gorin v. United States, 312 U.S. 19, 26 (1914); see also United States v.
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`Harper, 729 F.2d 1216, 1217–18 (9th Cir. 1984) (prosecuting under 18 U.S.C. § 794 for sending
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`“secret national defense information” to a foreign officer). But it is not plausible that the films,
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`photos, art, or even personal information U.S. users share on TikTok fall within the plain meaning
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`of the Espionage Act.
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`2. Personal Communications
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`Like the informational-materials limitation, § 1702(b)(1) states that IEEPA’s grant of
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`authority does not include the “authority to regulate or prohibit, directly or indirectly . . . any . . .
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`personal communication, which does not involve a transfer of anything of value.” 50 U.S.C.
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`1702(b)(1). It is undisputed that the Secretary’s prohibitions will have the effect of preventing
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`Americans from sharing personal communications on TikTok. Reply, ECF No. 26, 12. As
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`Plaintiffs put it, the prohibitions “will destroy this online community, first by requiring the removal
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`of TikTok from . . . U.S. app stores, and, when the remaining Prohibitions come into effect on
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`November 12, 2020, shutting down TikTok entirely.” Pls.’ P.I. Mot., ECF No. 15-1, 18; see also
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`Pappas Decl., ECF No. 15-3, ¶¶ 4, 17.
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`The government counters by arguing that some communications on TikTok do have
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`economic value. Defs.’ Opp’n, ECF No. 22, 16. Fair enough. But “a wide swath of TikTok
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`videos, public comments . . . , and private messages between friends about TikTok videos” are
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`“personal communications with no economic value at all.” Reply, ECF No. 26, 13. The
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`government also argues that, even if the communications were of no value to the creators, they
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`benefit TikTok as a platform. Defs.’ Opp’n, ECF No. 22, 16. But such an expansive reading of
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`the phrase “anything of value” would write the personal-communications limitation out of the
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`statue. All communication service providers—from televisions stations and publishers to cellular
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`phone carriers—get some value from a user’s “presence on” their platform. Reply, ECF No. 26,
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`15. Congress enacted § 1702(b)(1) to protect personal communications, but even the letter a
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`person drops in the mail adds some value to the mail carrier; it cannot be that IEEPA authorizes
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`the targeting of such communications. See King v. Burwell, 576 U.S. 473, 494 (2015) (rejecting
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`an interpretation because it was “implausible that Congress meant the Act to operate in this
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`manner”).
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`* * * * *
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`In sum, the TikTok Order and the Secretary’s prohibitions will have the intended effect of
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`stopping U.S. users from communicating (and thus sharing data) on TikTok. To be sure, the
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`ultimate purpose of those prohibitions is to protect the national security by preventing China from
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`accessing that data and skewing content on TikTok. And the government’s actions may not
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`constitute direct regulations or prohibitions of activities carved out by 50 U.S.C. 1702(b). But
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`Plaintiffs have demonstrated that they are likely to succeed on their claim that the prohibitions
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`constitute indirect regulations of “personal communication[s]” or the exchange of “information or
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`informational materials.”3
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`B. Irreparable Harm
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`The Court next considers whether Plaintiffs have made a showing of irreparable harm.
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`“[P]roving ‘irreparable’ injury is a considerable burden, requiring proof that the movant’s injury
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`3 Because the Court concludes that Plaintiffs have demonstrated a likelihood of success under
`IEEPA, it need not analyze Plaintiffs’ other statutory and constitutional claims to decide whether
`Plaintiffs are entitled to preliminary relief. But the Court does note that Plaintiffs appear to have
`presented at least serious questions on their other claims.
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`Case 1:20-cv-02658-CJN Document 30 Filed 09/27/20 Page 15 of 18
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`is ‘certain, great and actual—not theoretical—and imminent, creating a clear and present need for
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`extraordinary equitable relief to prevent harm.’” Power Mobility Coal. v. Leavitt, 404 F. Supp. 2d
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`190, 204 (D.D.C. 2005) (quoting Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)). In
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`addition, “the certain and immediate harm that a movant alleges must also be truly irreparable in
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`the sense that it is ‘beyond remediation.’” Elec. Priv. Info. Ctr. v. U.S. Dep’t of Just., 15 F. Supp.
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`3d 32, 44 (D.D.C. 2014) (quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290,
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`297 (D.C. Cir. 2006)). The movant must “substantiate the claim that irreparable injury is likely to
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`occur” and “provide proof . . . indicating that the harm is certain to occur in the near future.” Wis.
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`Gas Co., 758 F.2d at 674. That is because “[i]ssuing a preliminary injunction based only on a
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`possibility of irreparable harm is inconsistent with [the Supreme Court’s] characterization of
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`injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that
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`the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22.
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`Plaintiffs have demonstrated that, absent injunctive relief, they will suffer irreparable harm.
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`It is undisputed that as of the date of the TikTok Order, TikTok was one of the fastest growing
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`apps in the United States, adding 424,000 new users each day. See Pappas Decl., ECF No. 15-3,
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`¶ 18. Barring TikTok from U.S. app stores would, of course, have the immediate and direct effect
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`of halting the influx of new users, likely driving those users to alternative platforms and eroding
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`TikTok’s competitive position. Id. In fact, TikTok has proffered unrebutted evidence that
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`uncertainty in TikTok’s future availability has already driven, and will continue to drive, content
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`creators and