Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 1 of 39 Page ID #:1 1 2 3 4 5 6 7 8 9 10 11 Beth S. Brinkmann (SBN 129937)** bbrinkmann@cov.com Alexander A. Berengaut* aberengaut@cov.com Megan C. Keenan* mkeenan@cov.com COVINGTON & BURLING LLP 850 Tenth Street, NW Washington, DC 20001 Telephone: +1 (202) 662-6000 Facsimile: + 1 (202) 778-6000 John E. Hall (SBN 118877) jhall@cov.com Anders Linderot* alinderot@cov.com COVINGTON & BURLING LLP 620 Eighth Avenue New York, New York 10018-1405 Telephone: +1 (212) 841-1000 Facsimile: + 1 (212) 841-1010 16 Mitchell A. Kamin (SBN 202788) mkamin@cov.com Benjamin G. Cain (SBN 325122)** bcain@cov.com COVINGTON & BURLING LLP 1999 Avenue of the Stars, Suite 3500 Los Angeles, California 90067-4643 Telephone: + 1 (424) 332-4800 Facsimile: + 1 (424) 332-4749 17 Attorneys for Plaintiffs 18 *Pro hac vice application forthcoming **C.D. California admission forthcoming 12 13 14 15 19 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 20 21 22 TIKTOK INC. and BYTEDANCE LTD., Plaintiffs, 23 24 25 26 27 28 v. Case No. 2:20-cv-7672 COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF DONALD J. TRUMP, in his official capacity as President of the United States; WILBUR L. ROSS, JR., in his official capacity as Secretary of Commerce; and U.S. DEPARTMENT OF COMMERCE, Defendants. COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 2 of 39 Page ID #:2 1 Plaintiffs TikTok Inc. and ByteDance Ltd., for their Complaint against 2 Defendants DONALD J. TRUMP, in his official capacity as President of the United 3 States; WILBUR L. ROSS, JR., in his official capacity as Secretary of Commerce; 4 and the U.S. DEPARTMENT OF COMMERCE; allege as follows: 5 6 INTRODUCTION 1. This action seeks to prevent the government from impermissibly 7 banning TikTok, a mobile software application that 100 million Americans use to 8 create and share short videos composed of expressive content. On August 6, 2020, 9 President Trump issued an executive order banning this communication and 10 information-sharing platform, without affording its owners—Plaintiffs TikTok Inc. 11 and ByteDance Ltd.—due process of law and for political reasons rather than 12 because of an “unusual and extraordinary threat” to the United States, which is a 13 condition for the President to exercise his authority under the International 14 Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. §§ 1701–1706. The 15 President’s executive order is unconstitutional and ultra vires, and must be enjoined. 16 2. IEEPA vests the President with significant power to prohibit certain 17 transactions to protect U.S. national security. Past presidents have used this power 18 responsibly to protect the country from genuine threats from abroad, including 19 terrorism and the proliferation of weapons of mass destruction. Through this 20 executive order, however, President Trump seeks to use IEEPA against TikTok Inc., 21 a U.S. company—headquartered in Los Angeles with hundreds of employees across 22 the United States—to destroy an online community where millions of Americans 23 have come together to express themselves, share video content, and make 24 connections with each other. The order imposes these restrictions despite express 25 limitations in IEEPA barring executive actions from restricting personal 26 communications or the transmission of informational materials. The order also 27 sweeps broadly to ban any transactions with TikTok Inc.’s parent company, 28 ByteDance, even though the purported justification for the order is limited to the -1COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 3 of 39 Page ID #:3 1 TikTok mobile application (“TikTok”), which is just one of ByteDance’s several 2 businesses. The order is thus a gross misappropriation of IEEPA authority and a 3 pretext for furthering the President’s broader campaign of anti-China rhetoric in the 4 run-up to the U.S. election. 5 3. The executive order seeks to ban TikTok purportedly because of the 6 speculative possibility that the application could be manipulated by the Chinese 7 government. But, as the U.S. government is well aware, Plaintiffs have taken 8 extraordinary measures to protect the privacy and security of TikTok’s U.S. user 9 data, including by having TikTok store such data outside of China (in the United 10 States and Singapore) and by erecting software barriers that help ensure that TikTok 11 stores its U.S. user data separately from the user data of other ByteDance products. 12 These actions were made known to the U.S. government during a recent U.S. 13 national security review of ByteDance’s 2017 acquisition of a China-based 14 company, Musical.ly. 15 documentation to the U.S. government documenting TikTok’s security practices and 16 made commitments that were more than sufficient to address any conceivable U.S. 17 government privacy or national security concerns—even going so far as to be 18 prepared to spin-out the U.S. TikTok business to trusted American investors. 19 4. As part of that review, Plaintiffs provided voluminous Ignoring these demonstrable facts and commitments, President 20 Trump’s executive order authorizes the Secretary of Commerce to prohibit “any 21 transaction” with ByteDance and its subsidiaries, including banning TikTok from 22 operating in the United States. It is revealing that the President’s order took no 23 account of the national security review process involving the Committee on Foreign 24 Investment in the United States (“CFIUS” or “the Committee”) that was still pending 25 at the time of the executive order. Instead, the order was issued abruptly after the 26 President had proclaimed in a campaign-style news conference that TikTok Inc. had 27 “no rights” and that he would ban TikTok if Plaintiffs did not pay money to the U.S. 28 Treasury to secure the U.S. government’s approval for any sale. The President stated -2COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 4 of 39 Page ID #:4 1 that he would use his IEEPA authority to force TikTok to “close down” unless it is 2 acquired through “an appropriate deal” in which “the Treasury . . . of the United 3 States gets a lot of money.” 1 5. 4 5 The executive order and, necessarily, any implementing regulations are unlawful and unconstitutional for a number of independent reasons: 6 • By banning TikTok with no notice or opportunity to be heard (whether 7 before or after the fact), the executive order violates the due process 8 protections of the Fifth Amendment. 9 • The order is ultra vires because it is not based on a bona fide national 10 emergency and authorizes the prohibition of activities that have not 11 been found to pose “an unusual and extraordinary threat.” 12 • The order is ultra vires because its prohibitions sweep broadly to 13 prohibit any transactions with ByteDance, although the purported threat 14 justifying the order is limited to TikTok, just one of ByteDance’s 15 businesses. 16 • The order is ultra vires because it restricts personal communications 17 and the transmission of informational materials, in direct violation of 18 IEEPA. 19 • IEEPA lacks any intelligible principle to guide or constrain the 20 President’s action and thereby violates the non-delegation doctrine, as 21 the President’s overbroad and unjustified claim of authority in this 22 matter confirms. 23 • By demanding that Plaintiffs make a payment to the U.S. Treasury as a 24 condition for the sale of TikTok, the President has taken Plaintiffs’ 25 property without compensation in violation of the Fifth Amendment. • By preventing TikTok Inc. from operating in the United States the 26 27 28 1 Fadel Allassan, Trump says TikTok will be banned if not sold by Sept. 15, demands cut of sale fee, Axios (Aug. 3, 2020), https://www.axios.com/trump-tiktok-bannedmicrosoft-fd45748d-1ee8-4f4a-812a-09ec76d6f8e2.html. -3COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 5 of 39 Page ID #:5 1 executive order violates TikTok Inc.’s First Amendment rights in its 2 code, an expressive means of communication. 6. 3 Accordingly, ByteDance and TikTok Inc. seek a declaratory judgment 4 and order invalidating and enjoining the executive order and any implementing 5 regulations issued by the Department of Commerce. 2 JURISDICTION AND VENUE 6 7. 7 The Court has subject matter jurisdiction under 28 U.S.C. § 1331 8 because this action arises under the United States Constitution and the International 9 Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. §§ 1701–1706. 8. 10 The Court has authority to grant declaratory and injunctive relief 11 pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq.; 5 U.S.C. § 702; 12 and the Court’s inherent equitable powers. 9. 13 Venue is proper in this district pursuant to 28 U.S.C. § 1391(e)(1), 14 because officers or employees of agencies of the United States acting in their official 15 capacities and an agency of the United States are defendants, because Plaintiff 16 TikTok Inc. has its principal place of business in this district, and because a 17 substantial part of the events or omissions giving rise to this action occurred in this 18 district. PARTIES 19 20 A. Plaintiffs 21 10. Plaintiff TikTok Inc. is a company incorporated in California, with its 22 principal place of business in Culver City, California. 11. 23 Plaintiff ByteDance Ltd. (“ByteDance”) is a global company 24 incorporated in the Cayman Islands, with offices in the United States, China, 25 Singapore, the United Kingdom, and India, among others. ByteDance owns and 26 2 27 28 The order tasks the Department of Commerce with identifying the specific transactions to be banned by September 20, 2020, and with adopting rules and regulations as may be necessary to implement the order. Plaintiffs intend to amend this complaint pursuant to Fed. R. Civ. P. 15(a)(1)(A) and move for a preliminary injunction after the regulations are issued. -4COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 6 of 39 Page ID #:6 1 operates a variety of mobile software applications that enable people around the 2 world to connect with, consume, and create entertainment content, including 3 TikTok. ByteDance also owns and operates other applications that are available in 4 the United States, such as CapCut, a video editing application, and Lark, a 5 collaboration and communications software product. 6 B. Defendants 7 12. Defendant Donald J. Trump is the President of the United States. 8 President Trump made the decision to ban TikTok and issue the August 6, 2020 9 executive order, purportedly acting under authority of IEEPA. 13. 10 Defendant Wilbur T. Ross, Jr. is the Secretary of Commerce and is sued 11 in his official capacity. President Trump’s executive order tasks Secretary Ross with 12 identifying the transactions subject to the order and authorizes him to implement the 13 order through regulations. 14. 14 15 government responsible for implementing the executive order. FACTUAL ALLEGATIONS 16 17 The Department of Commerce is the cabinet department of the federal I. 18 TikTok’s Global Success Entrepreneurial Innovation. 19 15. Has Resulted From Private-Sector TikTok is an inclusive communication platform for making and sharing 20 short-form videos through the TikTok mobile application. It encourages users to 21 celebrate what makes them unique, while finding a community that does the same. 22 TikTok Inc.’s mission is to inspire creativity and bring joy. It strives to build a global 23 community, in which users can create and share authentically, discover the world 24 around them, and connect with others across the globe.3 16. 25 26 The TikTok application enables users to create and upload short videos that are fifteen seconds to one minute in duration. In this respect, TikTok operates 27 28 3 TikTok, Our Mission, https://www.tiktok.com/about?lang=en (last visited Aug. 21, 2020). -5COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 7 of 39 Page ID #:7 1 much like other digital application platforms such as Snapchat, YouTube, and 2 Instagram, in that users create and post content on the platform. TikTok offers 3 features such as background music and augmented reality effects, but users control 4 which features to pair with the content of their self-directed videos, and TikTok 5 serves as a host for the content created by its users. 6 17. The TikTok application began as a product of private-sector 7 entrepreneurship. In 2012, 29-year-old entrepreneur Yiming Zhang founded TikTok 8 Inc.’s parent corporation, ByteDance. ByteDance is owned by Zhang and a number 9 of major global institutional investors based in the United States, including Sequoia, 10 General Atlantic, Coatue, and SIG. No foreign government, or person controlled by 11 or acting on behalf of a foreign government, owns any significant interest or any 12 other affirmative or negative rights or powers in ByteDance. 13 18. Since founding ByteDance, Zhang has developed multiple products and 14 services, including TikTok, many of which are operated through subsidiaries and 15 affiliates—such as TikTok Inc. in the United States. TikTok is not offered in China, 16 where ByteDance operates a similar but separate video-sharing platform called 17 Douyin. 18 19. TikTok’s user base has grown at a rapid pace in the United States. By 19 January 2018, TikTok had 11,262,970 U.S. monthly active users. By February 2019, 20 TikTok’s base more than doubled, with a total of 26,739,143 U.S. monthly active 21 users. By October of that same year, TikTok’s total number of U.S. monthly active 22 users had climbed to 39,897,768. And by June 2020, TikTok’s total number of U.S. 23 monthly active users had soared to 91,937,040. Today, based on quarterly usage, 24 100 million Americans use the TikTok application. 25 20. TikTok’s growth in the United States paralleled its expansion 26 worldwide. By January 2018, TikTok had 54,793,729 global monthly active users. 27 By December of that year, TikTok had 271,188,301 global monthly active users. 28 And one year later, in December 2019, TikTok had 507,552,660 global monthly -6COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 8 of 39 Page ID #:8 1 active users. As of July 2020, TikTok had 689,174,209 global monthly active users, 2 and by August 2020, TikTok surpassed two billion global downloads. 21. 3 As a result of its rapid growth and success, TikTok has become 4 available in more than 200 countries, and it currently has approximately 50 million 5 daily active users in the United States. TikTok has grown largely because of its 6 appeal to those who value the blend of light entertainment, creativity, and humor 7 that the application provides. 22. 8 TikTok is also used by its users to discuss more serious subjects, 9 including political issues. “Society’s struggles are on full display in TikTok,” 10 including in the many posts about “the tragic death of George Floyd[,] LGBTQ 11 awareness[,] and tributes to healthcare workers [] who are on the frontlines of 12 COVID-19.”4 As of August 24, 2020, TikTok users had amassed approximately 6.8 13 million views of posts with the hashtag #RIPJohnLewis, 230.3 million views of posts 14 about #Juneteenth, and 20.3 billion views of posts about #BlackLivesMatter. 5 15 Prominent TikTok users like Sarah Cooper have attracted millions of views based 16 on posts that satirize the President, as have posts with hashtags such as 17 #MakeAmericaGreatAgain and #BuildThatWall. 6 And TikTok users claimed they 18 used TikTok to coordinate mass ticket reservations for the President’s re-election 19 20 21 22 23 24 25 26 27 28 4 Gene Del Vecchio, TikTok Is Pure Self-Expression. This Is Your Must-Try Sampler., Forbes (June 6, 2020), https://www.forbes.com/sites/genedelvecchio/ 2020/06/06/tiktok-is-pure-self-expression-this-is-your-must-trysampler/#4e40f1f15a09. 5 TikTok, #RIPJohnLewis, https://www.tiktok.com/tag/RIPJohnLewis?lang=en (last visited Aug. 24, 2020); TikTok, #Juneteenth, https://www.tiktok.com/ tag/Juneteenth?lang=en (last visited Aug. 24, 2020); TikTok, #BlackLivesMatter, https://www.tiktok.com/tag/BlackLivesMatter?lang=en (last visited Aug. 24, 2020). 6 Charles Trepany, Who is Sarah Cooper? Viral Trump Impersonator appears at DNC, bags TV specials, USA Today (Aug. 20, 2020), https://www.usatoday.com/ story/entertainment/celebrities/2020/07/21/trump-impersonator-sarah-cooperreflects-viral-social-media-stardom/5483534002/; TikTok, #MakeAmericaGreat Again, https://www.tiktok.com/tag/MakeAmericaGreatAgain?lang=en (last visited Aug. 23, 2020) (approximately 104.5 million views); TikTok, #BuildThatWall, https://www.tiktok.com/tag/BuildThatWall?lang=en (last visited Aug. 23, 2020). -7COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 9 of 39 Page ID #:9 1 campaign rally in Tulsa, which inflated projected attendance in the days leading up 2 to the event. 7 Several American politicians are verified users on TikTok, including 3 Governor Michael DeWine of Ohio, Senator Ed Markey of Massachusetts, Governor 4 Gavin Newsom of California, and Senator Bernie Sanders of Vermont. 23. 5 TikTok is an economic lifeline for many of its users, especially during 6 the COVID-19 pandemic. TikTok has given rise to new, non-traditional social 7 media celebrities—“many of them working-class folks . . . in villages far from [] 8 cosmopolitan megacities”—and has become “a livelihood for some people,” 9 providing “fame, empowerment and even a path out of poverty.” 8 10 II. 11 TikTok Has Implemented Safeguards to Help Protect the Privacy and Security of U.S. User Data. 12 24. Maintaining a safe and supportive environment for its users is a critical 13 priority for Plaintiffs. TikTok’s business model rests on the principle that a safe 14 environment is essential to helping people feel comfortable with expressing 15 themselves openly and creatively. Plaintiffs also aim to cultivate an environment 16 for authentic interactions by working to keep deceptive content and accounts off 17 TikTok. 25. 18 TikTok has been structured to help protect the privacy and security of 19 U.S. user data. Those protections begin with TikTok’s practices in collecting user 20 data. TikTok collects limited data from its users in accordance with its privacy 21 policy. 9 For user data that is collected, TikTok prioritizes its secure storage. The 22 current version of TikTok made available in the United States (i.e., the version 23 7 24 Taylor Lorenz et al, TikTok Teens and K-Pop Stans Say They Sank Trump Rally, N.Y. Times (July 11, 2020), https://www.nytimes.com/2020/06/21/style/tiktoktrump-rally-tulsa.html. 25 8 26 27 28 Sushmita Pathak, ‘TikTok Changed My Life’: India’s Ban On Chinese App Leaves Video Makers Stunned, NPR (July 16, 2020), https://www.npr.org/2020/ 07/16/890382893/tiktok-changed-my-life-india-s-ban-on-chinese-app-leavesvideo-makers-stunned. 9 TikTok, Privacy Policy (last updated Jan. 1, 2020), https://www.tiktok.com/ legal/privacy-policy?lang=en. -8COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 10 of 39 Page ID #:10 1 principally affected by Defendant’s unlawful ban and the version on which this 2 complaint focuses) stores all U.S. user data on servers in the United States and 3 Singapore, where it is segregated from data relating to other ByteDance products 4 and services by software-based controls. TikTok does not store any U.S. user data 5 in China. 6 26. While it is in storage, the following U.S. user data is currently encrypted 7 using the industry-standard key management service (“KMS”) encryption algorithm 8 (AES 256 GCM), which is operated by TikTok’s U.S. security team: names, 9 birthdays, home addresses, phone numbers, emails, passwords, PayPal account 10 information, contact list, private videos, direct messages, and certain fields of the 11 log-in history. 12 27. The KMS algorithm also generates secret keys required to access 13 encrypted data, and these keys are managed by the U.S. security team, under the 14 control and direction of Roland Cloutier, the U.S.-based Global Chief Security 15 Officer. ByteDance’s China-based engineering personnel supporting TikTok may 16 access these encrypted data elements in decrypted form based on demonstrated need 17 and if they receive permission under the Data Access Approval Process, which is 18 managed by TikTok’s U.S.-based team. 19 28. TikTok has additional internal controls in place to prevent keys that 20 decrypt U.S. user data from being accessed by ByteDance personnel without 21 authorization from the U.S. security team. TikTok regularly conducts code audits 22 and internal reviews of access to data to help ensure that no unauthorized access to 23 U.S. user data takes place, and it has not identified any purposeful breach of security 24 controls. 25 29. In addition to its storage security practices, TikTok takes steps to secure 26 and encrypt user data while it is being transmitted. TikTok currently uses Hypertext 27 Transfer Protocol Secure (“HTTPS”) by default for transmission of user data in the 28 United States, the same industry-standard protocol used by major U.S. banks and -9COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 11 of 39 Page ID #:11 1 e-commerce platforms to secure their online transactions. 30. 2 TikTok is committed to continually strengthening its data privacy 3 policies to protect its users, to maintain sponsors’ trust, and to comply with 4 applicable legal and regulatory standards. TikTok regularly reviews its security 5 protections to identify and remediate any potential vulnerabilities. This is part of a 6 mature software development lifecycle program that involves both automatic and 7 manual review of security controls at multiple points in the development process. 8 TikTok also has a vulnerability reporting policy that invites security researchers to 9 disclose information about vulnerabilities, 10 and it relies on respected American 10 third-party vendors to validate its security controls and help ensure that U.S. user 11 data is not subject to security vulnerabilities. 31. 12 In addition to safeguarding TikTok user data against data breaches, 13 hackers, and other malicious actors, TikTok has security controls designed to protect 14 the integrity of its source code. For example, employees must demonstrate a need 15 for information before they can access TikTok source code. Even upon a showing 16 of such a need, the employee still must obtain appropriate authorization to access the 17 source code, and security controls embedded in the network monitor the employee’s 18 review and activities. TikTok has also repeatedly engaged internal engineers and 19 third-party vendors to perform quality and security checks and conduct intensive 20 code reviews to help ensure that no back doors exist in TikTok’s source code. 32. 21 TikTok has reinforced its commitment to prioritizing the privacy and 22 security concerns of U.S. users by placing U.S.-based executives in key leadership 23 positions that shape the direction of the company. TikTok is led by a senior 24 management team located in the United States. Its Chief Executive Officer, General 25 Manager, Global Chief Security Officer, U.S. Head of Safety, and General Counsel 26 27 28 10 TikTok, Report Security Vulnerabilities, https://support.tiktok.com/en/privacysafety/reportsecurityvulnerabilities-default#:~:text=Coordinated%20Disclosure% 20Policy%20as%20defined,submission%2C%20whichever%20is%20sooner.%22. -10COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 12 of 39 Page ID #:12 1 are all U.S.-based persons. 2 leadership positions in prominent U.S. companies like the Walt Disney Company, 3 ADP, YouTube, and Microsoft. 11 33. 4 These U.S.-based leaders came to TikTok from TikTok Inc. has broadened its commitment to hiring U.S. personnel 5 beyond the highest levels of leadership as well, including by hiring dozens of highly 6 qualified individuals with experience at leading U.S. technology companies. TikTok 7 has also established a fully staffed content moderation team in the United States to 8 oversee all content moderation decisions for U.S. users. 9 announced plans to add approximately 10,000 jobs in the United States over the next 10 And Plaintiffs have three years. 12 34. 11 TikTok’s U.S.-based leadership team has consistently stressed its 12 commitment to prioritizing U.S. data privacy and security. 13 Most recently, on July 13 29, 2020, TikTok announced the launch of its Transparency and Accountability 14 Center for moderation and data practices, which will enable experts to “observe our 15 moderation policies in real-time, as well as examine the actual code that drives our 16 algorithms.” 17 unparalleled by other major social media companies and “puts [TikTok] a step ahead 18 of the industry.” 14 35. 19 20 As the announcement explained, this act of transparency is As these efforts reflect, Plaintiffs are committed to appropriately safeguarding U.S. user data against unauthorized access from outside the United 21 22 23 24 25 11 Brooks Barnes & Jack Nicas, Disney’s Head of Streaming Is New TikTok C.E.O., N.Y. Times (May 18, 2020), https://www.nytimes.com/2020/05/18/ business/media/tiktok-ceo-kevin-mayer.html. 12 Reuters, TikTok plans to add 10,000 jobs in U.S. over next three years (July 21, 2020), https://www.reuters.com/article/us-tiktok-jobs/tiktok-plans-to-add-10000jobs-in-u-s-over-next-three-years-idUSKCN24M1S9. 13 26 Vanessa Pappas, Explaining TikTok’s approach in the US, TikTok (Nov. 5, 2019), https://newsroom.tiktok.com/en-us/explaining-tiktoks-approach-in-the-us. 27 14 28 Kevin Mayer, Fair competition and transparency benefits us all, TikTok (July 29, 2020), https://newsroom.tiktok.com/en-us/fair-competition-and-transparencybenefits-us-all. -11COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 13 of 39 Page ID #:13 1 States—including by any foreign government. TikTok is not and has never been 2 offered in China. 3 government. Nor does the Chinese government exert any control over TikTok Inc. 4 through its parent company, ByteDance. The key personnel responsible for TikTok, 5 including its CEO, Global Chief Security Officer, and General Counsel, are all 6 Americans based in the United States—and therefore are not subject to Chinese law. 7 U.S. content moderation is likewise led by a U.S.-based team and operates 8 independently from China, and, as noted above, the TikTok application stores U.S. 9 user data on servers located in the United States and Singapore. 36. 10 There is no connection between TikTok and the Chinese Neither TikTok Inc. nor ByteDance provides TikTok user data to the 11 Chinese government, and the Chinese government has never asked for data on 12 TikTok users or to moderate TikTok content. Plaintiffs would reject any such 13 request. 14 III. 15 Plaintiffs Proactively Engaged with the U.S. Government and Sought to Address Any Conceivable National Security Concerns. 16 37. As the foregoing reflects, as TikTok has grown, it has continued to 17 refine and strengthen its data privacy protections and has done so voluntarily, 18 reflecting its ongoing commitment to U.S. users. As part of these efforts, Plaintiffs 19 have also sought proactively to engage with the U.S. Government to anticipate and 20 address any concerns it might have. 21 separately and diligently to inquiries from CFIUS. 22 38. These efforts have included responding CFIUS is the regulatory body tasked with reviewing foreign 23 acquisitions of U.S. businesses to determine their impact on national security. 24 CFIUS reviews transactions to identify and address any unresolved national security 25 concerns they might pose to the United States. If CFIUS identifies such a risk that 26 cannot be adequately and appropriately addressed by other legal authorities, the 27 Committee or a lead agency may, on behalf of the Committee, negotiate, enter into 28 or impose, and enforce any agreement or condition with any party to the covered -12COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 14 of 39 Page ID #:14 1 transaction in order to mitigate any risk to the national security of the United States 2 that arises as a result of the covered transaction. Under its governing statute, CFIUS 3 may refer a transaction to the President if CFIUS is unable to identify adequate and 4 appropriate mitigation, i.e., mitigation measures that it believes (a) can successfully 5 address the identified risk, (b) allow for verifiable compliance, and (c) can be 6 effectively monitored and enforced, consistent with the requirements of 50 U.S.C. 7 § 4565(l)(3)(C). 8 transactions that pose threats to national security that cannot be adequately and 9 appropriately addressed through other authorities. 10 39. The President is ultimately empowered to prohibit covered In 2019, CFIUS contacted ByteDance to consider whether to review its 11 acquisition of Musical.ly, a China-based video-sharing platform—even though 12 Musical.ly was based in China and had very limited assets in the United States. This 13 review was highly unusual in that ByteDance had acquired Musical.ly two years 14 earlier in 2017, Musical.ly was previously Chinese-owned and based in China, and 15 ByteDance had predominantly abandoned Musical.ly’s limited U.S. assets by the 16 time of CFIUS’s outreach in 2019. Nevertheless, in March 2020, after months of 17 evaluating its jurisdiction, CFIUS advised ByteDance that it intended to conduct a 18 formal review of the acquisition of Musical.ly, and on June 15, 2020, CFIUS 19 initiated that review. This lengthy deliberation by a U.S. government institution 20 comprised of national security professionals simply underscores that, in fact, there 21 was no national emergency in relation to TikTok or ByteDance’s acquisition of 22 Musical.ly. 23 40. The Musical.ly acquisition did not affect—let alone undermine— 24 TikTok Inc.’s commitments to the security and privacy of its U.S. user data, nor did 25 it create any national security concerns. In fact, after acquiring Musical.ly in 2017, 26 ByteDance and TikTok migrated Musical.ly users to TikTok and, as noted above, 27 effectively abandoned the Musical.ly code, brand, and business. And since the 28 Musical.ly acquisition, ByteDance and TikTok Inc. have sought to base more of the -13COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 15 of 39 Page ID #:15 1 2 TikTok business, including the user data, in the United States. 41. CFIUS nevertheless initiated a review of the Musical.ly acquisition, 3 following, as noted, a lengthy period of evaluating whether there was a basis for such 4 a review. 5 ByteDance provided voluminous documentation and information in response to 6 CFIUS’s questions. 7 documentation to CFIUS demonstrating TikTok’s security measures to help ensure 8 U.S. user data is safeguarded in storage and in transit and cannot be accessed by 9 unauthorized persons—including any government—outside the United States. 10 42. During this period, and through the course of the CFIUS review, Among other evidence, ByteDance submitted detailed CFIUS never articulated any reason why TikTok’s security measures 11 were inadequate to address any national security concerns, and effectively 12 terminated formal communications with Plaintiffs well before the conclusion of the 13 initial statutory review period. Notwithstanding the U.S. government’s failure to 14 identify any security risk, in an effort to address any conceivable concerns that the 15 U.S. government may have and to assure continuity for the U.S. users who had come 16 to value and cherish the platform that TikTok provides, Plaintiffs took the 17 extraordinary step of offering to restructure their U.S. business. From the middle 18 through the end of July 2020, ByteDance proposed various mitigation plans to the 19 U.S. Treasury Department (which chairs CFIUS), including spinning out TikTok’s 20 U.S. business to American investors and/or trusted U.S. technology partners that 21 would be responsible for maintaining and operating TikTok in the United States. On 22 July 30, 2020, Plaintiffs also notified CFIUS that ByteDance had signed a non- 23 binding Letter of Intent (LOI) with Microsoft Corporation contemplating that, 24 among other things, Microsoft could acquire the U.S. TikTok business and could 25 serve as the trusted technology partner for TikTok’s U.S. business. 26 43. Despite these repeated efforts and concrete proposals to alleviate any 27 national security concerns, the agency record reflects that CFIUS repeatedly refused 28 to engage with ByteDance and its counsel about CFIUS’s concerns. -14COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 16 of 39 Page ID #:16 44. 1 At 11:55 p.m. on July 30, 2020—the final day of the statutory CFIUS 2 review period—the Committee issued a letter stating that “CFIUS has identified 3 national security risks arising from the Transaction and that it has not identified 4 mitigation measures that would address those risks.” 45. 5 The CFIUS letter was principally based on outdated news articles, 6 failed to address the voluminous documentation that Plaintiffs had provided 7 demonstrating the security of TikTok user data, and was flawed in numerous other 8 respects. Most conspicuously, the Letter entirely failed to substantively address the 9 actual mitigation proposals that were on the table—namely, ByteDance’s 10 willingness to restructure its U.S. business. 11 IV. 12 Defendants Have Banned TikTok Without Providing Plaintiffs Due Process of Law. 13 A. Purporting to Act Under IEEPA, the President Issued an Extraordinary Executive Order Banning TikTok That Was Not Based on Any Bona Fide National Security Concern. 46. On August 6, 2020, notwithstanding ByteDance’s ongoing good-faith 14 15 16 17 efforts to pursue reforms and restructuring of the TikTok U.S. business, President 18 Trump took the unprecedented step of issuing the executive order challenged here, 19 entitled “Addressing the Threat Posed by TikTok.” 15 The President took this 20 extraordinary step without affording Plaintiffs any notice or opportunity to engage 21 in relation to any of the points raised in the order, all of which are speculative and 22 not based on actual facts, as described below. 47. 23 The executive order cites the International Emergency Economic 24 Powers Act (50 U.S.C. § 1701 et seq.) (“IEEPA”), the National Emergencies Act 25 (50 U.S.C. § 1601 et seq.), and 3 U.S.C. § 301 as the legal authority for issuing the 26 27 28 15 White House, Executive Order on Addressing the Threat Posed by TikTok (Aug. 6, 2020), https://www.whitehouse.gov/presidential-actions/executive-orderaddressing-threat-posed-tiktok/. The August 6 executive order was numbered 13942 and published in the Federal Register at 85 Fed. Reg. 48637. -15COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 17 of 39 Page ID #:17 1 2 order. 48. IEEPA grants the President authority to regulate various international 3 economic transactions during wartime or upon declaration of a national emergency 4 “to deal with any unusual and extraordinary threat, which has its source in whole or 5 substantial part outside the United States, to the national security, foreign policy, or 6 economy of the United States.” 50 U.S.C. § 1701(a). Before the President is 7 empowered to exercise authority under IEEPA, the President must first declare a 8 national emergency for purposes of the National Emergencies Act, 50 U.S.C. § 1601 9 et seq. (“NEA”). 10 49. Previous administrations have used IEEPA to impose sanctions on 11 foreign states like Iran and North Korea, or individuals who have been placed on the 12 Specially Designated Nationals and Blocked Persons List published by the U.S. 13 Treasury Department’s Office of Foreign Assets Control, because of the sanctioned 14 entity’s participation in terrorist activities or human rights abuses. These uses of 15 IEEPA have provided important protection against such external threats as 16 international terrorism and the proliferation of weapons of mass destruction. The 17 use of IEEPA to ban TikTok, however, marks a dramatic break from past practices. 18 50. On its face, the executive order fails to identify any unusual and 19 extraordinary threat posed by TikTok—or any actual national security threat at all. 20 Rather, the order makes various unsubstantiated assertions to support its purported 21 findings, as follows: 22 • “[TikTok’s] data collection threatens to allow the Chinese Communist 23 Party access to Americans’ personal and proprietary information — 24 potentially allowing China to track the locations of Federal employees 25 and contractors, build dossiers of personal information for blackmail, 26 and conduct corporate espionage.” 27 • TikTok “also reportedly censors content that the Chinese Communist 28 Party deems politically sensitive, such as content concerning protests -16COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 18 of 39 Page ID #:18 1 in Hong Kong and China’s treatment of Uyghurs and other Muslim 2 minorities.” 3 • TikTok “may also be used for disinformation campaigns that benefit 4 the Chinese Communist Party, such as when TikTok videos spread 5 debunked conspiracy theories about the origins of the 2019 Novel 6 Coronavirus.”16 51. 7 As its equivocal language telegraphs, the executive order provides 8 absolutely no evidence for any of its self-described findings. The order cites no 9 evidence that TikTok enables the Chinese government to track any U.S. persons, nor 10 does the order substantiate its allegations regarding TikTok’s supposed censorship 11 or its use as a platform for disinformation. It also fails to take account of any of the 12 voluminous documentation provided to CFIUS, which details TikTok’s policies, 13 procedures, and operational teams in place to safeguard against precisely these 14 hypothetical concerns. While IEEPA does not require a risk to fully materialize 15 before the President may invoke its authorities, it cannot be—and is not—the case 16 that the statute permits the President to rely on such unfounded speculation. 52. 17 The order uses such equivocal language because, in fact, TikTok does 18 none of these things: TikTok has made it clear, through its actions and statements, 19 that it shares no information with the Chinese government and will never do so—a 20 conclusion reportedly shared by the CIA, which found “no evidence” that Chinese 21 intelligence services have ever accessed data from TikTok. 17 TikTok also has a 22 mature content moderation program designed to provide a safe forum for its users, 23 and one that does not censor content to advance the political—or any other— 24 objectives of any government, including the Chinese government. And, there is 25 26 27 28 16 Id. (emphasis added). 17 Rachel Sandler, CIA Finds ‘No Evidence’ Chinese Government Has Accessed TikTok Data, Report Says, Forbes (Aug. 8, 2020), https://www.forbes.com/sites/ rachelsandler/2020/08/07/cia-finds-no-evidence-chinese-government-hasaccessed-tiktok-data-report-says/#13f3fbaa4c25. -17COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 19 of 39 Page ID #:19 1 absolutely zero evidence that TikTok has ever been used to spread disinformation or 2 conspiracy theories for any government. 53. 3 Instead of identifying any threats related to TikTok, the executive order 4 draws upon the previously declared “national emergency with respect to the 5 information and communications technology and services supply chain declared in 6 Executive Order 13873 of May 15, 2019 (Securing the Information and 7 Communications Technology and Services Supply Chain).” 54. 8 That previous executive order was designed to address asserted U.S. 9 national security concerns about Chinese telecommunications companies. It found 10 that “foreign adversaries are increasingly creating and exploiting vulnerabilities in 11 information and communications technology and services, which store and 12 communicate vast amounts of sensitive information, facilitate the digital economy, 13 and support critical infrastructure and vital emergency services, in order to commit 14 malicious cyber-enabled actions, including economic and industrial espionage 15 against the United States and its people,” and that the use of these information and 16 communications technology and services “constitutes an unusual and extraordinary 17 threat to the national security, foreign policy, and economy of the United States.”18 55. 18 President Trump’s August 6 order targeting TikTok purports to draw 19 upon the national emergency established in Executive Order 13873, and newly 20 declares that “the spread in the United States of mobile applications developed and 21 owned by companies in the People’s Republic of China” (China) continues to 22 threaten the national security, foreign policy, and economy of the United States,” 23 and that “action must be taken to address the threat posed by one mobile application 24 in particular, TikTok.” 19 25 26 27 28 18 White House, Executive Order on Securing the Information and Communications Technology and Services Supply Chain (May 15, 2019), https://www.whitehouse.gov/presidential-actions/executive-order-securinginformation-communications-technology-services-supply-chain/. 19 White House, Executive Order on Addressing the Threat Posed by TikTok (Aug. -18COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 20 of 39 Page ID #:20 56. 1 The order then prohibits “any transaction by any person, or with respect 2 to any property, subject to the jurisdiction of the United States, with ByteDance Ltd. 3 (a.k.a. Zìjié Tiàodòng), Beijing, China, or its subsidiaries, in which any such 4 company has any interest, as identified by the Secretary of Commerce,” and declares 5 that the prohibition will take effect starting 45 days after the issuance of the order, 6 which is on September 20, 2020. The covered transactions will be identified by the 7 Secretary of Commerce on September 20, 2020, the same day the order goes into 8 effect. 20 57. 9 The executive order thus goes far beyond merely banning TikTok, and 10 instead prohibits “any transactions” involving its parent company, ByteDance. The 11 executive order imposes this sweeping restriction even though TikTok is just one of 12 ByteDance’s several businesses and despite the fact that the purported findings set 13 out in the executive order are limited only to TikTok. 58. 14 While the full scope of the executive order will remain unknown until 15 the Secretary of Commerce identifies the covered transactions on September 20, 16 2020, the order itself poses an existential threat to TikTok’s U.S. business. 17 Depending on the definition of prohibited transactions, when the ban goes into 18 effect, it could wipe out Plaintiffs’ entire TikTok business by preventing TikTok 19 from attracting new users; by driving current users to competing platforms; and by 20 destroying TikTok’s ability to partner with other companies and attract and retain 21 employees. Some of these harms have already materialized and will only accelerate 22 once the Commerce Department specifies the scope of prohibited transactions. 23 Plaintiffs intend to move for a preliminary injunction to enjoin this irreparable harm 24 once the Commerce Department issues its regulations and the full scope of the 25 unlawful executive order’s impact is understood. 26 27 6, 2020), https://www.whitehouse.gov/presidential-actions/executive-orderaddressing-threat-posed-tiktok/. 28 20 Id. -19COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 21 of 39 Page ID #:21 1 B. The President Has Also Imposed Conditions on Plaintiffs’ Efforts to Divest the TikTok U.S. Business. 59. Despite these devastating economic consequences caused by the 2 3 4 executive order, Plaintiffs have persisted in their efforts to follow through on their 5 restructuring proposals. 6 60. Meanwhile, President Trump has acted to impose additional conditions 7 on any sale. First, on August 3, 2020, President Trump stated: “A very substantial 8 portion of th[e purchase] price is going to have to come into the Treasury of the 9 United States. Because we’re making it possible for this deal to happen. Right now 10 they don’t have any rights, unless we give it to them. So if we’re going to give them 11 the rights, it has to come into this country.” 21 The President added that TikTok will 12 “close down on September 15 unless Microsoft or somebody else is able to buy it 13 and work out a deal—an appropriate deal. So the Treasury of the—really, the 14 Treasury . . . of the United States gets a lot of money. A lot of money. Okay?” 22 15 61. The President elaborated on this condition on August 19, 2020, after 16 other potential buyers reportedly expressed interest in acquiring TikTok. When 17 asked whether he would “prefer Oracle to Microsoft,” the President responded: 18 “Well, I guess Microsoft wants it and so does Oracle, and probably so do other 19 people. But they have to also make sure the United States is well compensated 20 because we’re the ones making it possible. Very simple: We’re the ones making it 21 possible. So our Treasury has to be very well compensated. . . . You have to put 22 money into the Treasury.” 23 23 24 25 26 27 28 21 Fadel Allassan, Trump says TikTok will be banned if not sold by Sept. 15, demands cut of sale fee, Axios (Aug. 3, 2020), https://www.axios.com/trump-tiktok-bannedmicrosoft-fd45748d-1ee8-4f4a-812a-09ec76d6f8e2.html. 22 Jason Murdock, Trump Demanding Cut From Microsoft TikTok Sale Akin to ‘Extortion,’ Critics Say, Newsweek (Aug. 4, 2020), https://www.newsweek.com/ tiktok-microsoft-sale-president-donald-trump-extortion-1522597. 23 White House, Remarks by President Trump During Border Wall Construction and Operational Update Yuma, AZ (Aug. 18, 2020), https://www.whitehouse.gov/ -20COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 22 of 39 Page ID #:22 62. 1 Second, on August 14, 2020, the President accepted CFIUS’s 2 recommendation and issued an executive order titled “Regarding the Acquisition of 3 Musical.ly by ByteDance Ltd.”24 The CFIUS order asserts without explanation that 4 there is “credible evidence that leads me to believe that ByteDance Ltd. . . . might 5 take action that threatens to impair the national security of the United States,” and 6 based on this finding, the order prohibits “ownership by ByteDance of any interest 7 in Musical.ly in the United States, whether effected directly or indirectly through 8 ByteDance, or through ByteDance’s subsidiaries, affiliates, or Chinese 9 shareholders.”25 10 63. The President ignored the mitigation efforts by TikTok Inc. and 11 ByteDance and imposed a strict timeline for the company to do something it has 12 already offered to do: the CFIUS order mandates that, within 90 days (or 120 days, 13 if CFIUS chooses to provide a 30-day extension), ByteDance, its subsidiaries, 14 affiliates, and Chinese shareholders must “divest all interests and rights in: (i) any 15 tangible or intangible assets or property, wherever located, used to enable or support 16 ByteDance’s operation of the TikTok application in the United States, as determined 17 by the Committee; and (ii) any data obtained or derived from TikTok application or 18 Musical.ly application users in the United States.”26 64. 19 This lawsuit challenges the President’s August 6 executive order issued 20 under IEEPA. However, the CFIUS process and the President’s August 14 order 21 emanating from the CFIUS process provide important context for the August 6 22 order—for example, Plaintiffs’ mitigation proposals made during the CFIUS process 23 24 25 26 briefings-statements/remarks-president-trump-border-wall-constructionoperational-update-yuma-az/?utm_source=link. 24 White House, Order Regarding the Acquisition of Musical.ly by ByteDance Ltd (Aug. 14, 2020), https://www.whitehouse.gov/presidential-actions/order-regardingacquisition-musical-ly-bytedance-ltd/ (the “CFIUS order”). The CFIUS order was published in the Federal Register at 85 Fed. Reg. 51295. 27 25 Id. 28 26 Id. -21COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 23 of 39 Page ID #:23 1 undercut the rationale for not only the August 14 CFIUS executive order, but also 2 the President’s August 6 IEEPA executive order. 3 V. 4 The Background and Timing of the Executive Order Plainly Suggest That It Was Designed Not for a Bona Fide National Security Reason But Instead to Further the President’s Anti-China Political Campaign. 5 65. 6 The President’s actions clearly reflect a political decision to campaign 7 on an anti-China platform. As the 2020 election approaches, President Trump has 8 consistently referred to COVID-19 as the “Wuhan virus,” “China virus,” and “Kung 9 Flu,” despite previous public statements by officials in his own administration that 10 such terms were “highly offensive” and “hurtful.”27 66. 11 At his Tulsa campaign rally on June 20, 2020, for example, the 12 President deployed the term “Kung Flu” in discussing COVID-19, and added: 13 “China sent us the plague, thank you very much.” 28 On July 14, 2020, the President 14 returned to the theme, stating that “[n]o administration has been tougher on China 15 than this administration,” including by “hold[ing] China fully responsible for 16 concealing the virus and unleashing it upon the world.”29 67. 17 On July 30, 2020, the President again blamed China for the COVID-19 18 pandemic. When asked a question about providing unemployment insurance to 19 workers impacted by the COVID-19 pandemic, the President responded: “The fact 20 21 22 23 24 25 26 27 28 27 David Nakamura, With ‘kung flu,’ Trump sparks backlash over racist language — and a rallying cry for supporters, Wash. Post (June 24, 2020), https:// www.washingtonpost.com/politics/with-kung-flu-trump-sparks-backlash-overracist-language--and-a-rallying-cry-for-supporters/2020/06/24/485d151e-b62011ea-aca5-ebb63d27e1ff_story.html. 28 Rev Services, Donald Trump Tulsa, Oklahoma Rally Speech Transcript (June 21, 2020), https://www.rev.com/transcript-editor/shared/QejgrzxQ6qkjA0Za9-pjLFZ S5ZdV1-9FJlVhEDgD__iryMlzWNTuiXG75Z31YksXxLelVlbkViOTbhfk9W8L HVRjYLo?loadFrom=PastedDeeplink&ts=3769. 29 White House, Remarks by President Trump in Press Conference (July 14, 2020), https://www.whitehouse.gov/briefings-statements/remarks-president-trump-pressconference-071420/. -22COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 24 of 39 Page ID #:24 1 is, people don’t like saying it — they know it’s true: It’s China’s fault. Okay?”30 68. 2 The next day, on July 31, 2020, the President elaborated on his 3 anti-China rhetoric. The President said that voters “love Trump on trade. . . . Look 4 at what we did with China, we took in tens of billions of dollars. And before the 5 plague came in, we were doing so great, we were doing better than any country has 6 ever done. We were beating China at every level. . . . They were having the worst 7 year and we were having the best year we have ever had.” Before introducing the 8 other speakers, he ended the first portion of his speech by saying: “We will make 9 America great again, you’ve heard that before. . . . And we were there until the virus 10 came upon us and we’ll soon be there again. And China, we have not forgotten.”31 69. 11 The President’s re-election campaign has recently run online 12 advertisements targeting TikTok, asking supporters to “sign the petition now to ban 13 TikTok.” 32 President Trump and his campaign’s targeting of TikTok follows a 14 recent political episode, noted above, involving TikTok, in which TikTok users 15 claimed that they used the application to coordinate mass ticket reservations and 16 inflate projected attendance for the President’s campaign rally in Tulsa. 33 17 18 19 20 21 22 23 24 25 26 27 28 30 White House, Remarks by President Trump in Press Briefing (July 30, 2020), https://www.whitehouse.gov/briefings-statements/remarks-president-trump-pressbriefing-july-30-2020/. 31 CSPAN, President Trump Remarks to Florida Sheriffs (July 31, 2020), https://www.c-span.org/video/?474419-1/president-trump-remarks-florida-sheriffs. 32 John D. McKinnon & Shan Li, TikTok Could Be Tougher Target for Trump Administration, Wall St. J. (July 26, 2020), https://www.wsj.com/articles/tiktokcould-be-tougher-target-for-trump-administration-11595755800; Kari Soo Lindberg, Trump Campaign Urges Supporters to Back TikTok Ban in Online Ads, Bloomberg News (July 18, 2020), https://www.bloomberg.com/news/articles/202007-18/trump-campaign-urges-supporters-to-back-tiktok-ban-in-online-ads. 33 Taylor Lorenz et al, TikTok Teens and K-Pop Stans Say They Sank Trump Rally, N.Y. Times (July 11, 2020), https://www.nytimes.com/2020/06/21/style/tiktoktrump-rally-tulsa.html; Kari Soo Lindberg, Trump Campaign Urges Supporters to Back TikTok Ban in Online Ads, Bloomberg News (July 18, 2020), https://www.bloomberg.com/news/articles/2020-07-18/trump-campaign-urgessupporters-to-back-tiktok-ban-in-online-ads. -23COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 25 of 39 Page ID #:25 1 VI. 2 The Opinions of Independent Experts Underscore the Lack of Any Bona Fide National Security Justification for the Executive Order. 3 70. The executive order is not rooted in bona fide national security 4 concerns. Independent national security and information security experts have 5 criticized the political nature of this executive order, and expressed doubt as to 6 whether its stated national security objective is genuine. For example, Steven 7 Weber, a cybersecurity expert who currently serves as Associate Dean and Head of 8 UC Berkeley School of Information, has stated that, “[i]n this political environment 9 between the United States and China, you’re guilty until proven innocent if you’re a 10 Chinese company.” 34 Weber recognizes that, “[i]n theory, any app that collects 11 users data (in other words, essentially every app) could be a national security risk,” 12 but his view “is that the issue here isn’t really about TikTok; it’s about the overall 13 deterioration in Sino-American relations.”35 He stressed that this anti-China focus 14 has been borne out by the Trump administration’s recent actions: “This week the 15 villain is TikTok, last month it was Zoom, and before that Huawei.”36 In this sense, 16 the executive order marks a continuation of what Michael Wessel, a commissioner 17 on the US-China Economic and Security Review Commission, has called “an 18 inappropriate conflation of two different policy goals—trade and national 19 security.” 37 20 21 22 23 24 25 34 UC Berkeley School of Information, Steve Weber Says Geopolitical Tensions to Blame for Rising Fear in TikTok Security (July 15, 2020), https:// www.ischool.berkeley.edu/news/2020/steve-weber-says-geopolitical-tensionsblame-rising-fear-tiktok-security. 35 UC Berkeley School of Information, Steve Weber Says Fed’s Targeting of TikTok Related to Worsening US-China Relations (July 13, 2020), https:// www.ischool.berkeley.edu/news/2020/steve-weber-says-feds-targeting-tiktokrelated-worsening-us-china-relations. 26 36 27 37 28 Id. Clare Duffy, Trump said he’d ease up on Huawei. Questions remain about what that means, CNN Business (July 5, 2019), https://www.cnn.com/2019/07/03/tech/ trump-huawei-restrictions/index.html. -24COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 26 of 39 Page ID #:26 71. 1 Justin Sherman, fellow at the Atlantic Council’s Cyber Statecraft 2 Initiative, has similarly observed that “as soon as a Chinese company is in the news, 3 all of a sudden that becomes the new target” for the Trump administration.”38 And 4 Cybersecurity Policy and China Digital Economy Fellow Samm Sacks has stated 5 that such a ban “sets a dangerous precedent in which the U.S. government can 6 blacklist companies based on country of origin using blanket national security as 7 justification.” 39 8 72. Former U.S. government officials have also explained that the Trump 9 administration’s handling of the CFIUS investigation involving ByteDance’s 10 acquisition of Musical.ly is well outside the bounds of normal national security 11 investigations. Former officials such as American Enterprise Institute scholar Derek 12 Scissors, a self-identified “China hawk,” have described the “chaos” and 13 “politicization” of the CFIUS review—“including Trump’s loud involvement”—as 14 “botched” and “unprecedented in the history of the nearly 50-year-old panel.” 40 73. 15 The executive order is especially unprecedented in light of the 16 extraordinary mitigation proposed by Plaintiffs—a divestiture of TikTok’s U.S. 17 operations to trusted U.S. owners who have experience and expertise to maintain the 18 privacy and security of U.S. user data—which would completely address any 19 conceivable national security concerns. But instead of taking seriously Plaintiffs’ 20 efforts at mitigation as required by statute, the Trump administration failed to 21 propose modifications or even respond to the proposed mitigation solutions. The 22 President then threatened to take executive action against ByteDance and TikTok 23 24 25 38 CNN, TikTok is a national security threat, US politicians say. Here’s what experts think (July 9, 2020), https://wtop.com/cyber-security/2020/07/tiktok-is-a-nationalsecurity-threat-us-politicians-say-heres-what-experts-think/. 39 26 Samm Sacks, Banning TikTok is a terrible idea, SupChina (July 16, 2020), https://supchina.com/2020/07/16/banning-tiktok-is-a-terrible-idea/. 27 40 28 Emily Birnbaum, ‘This has been botched’: This is what makes Trump’s TikTok tirade so unusual, Protocol (Aug. 6, 2020), https://www.protocol.com/cfius-tiktoknot-how-this-works. -25COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 27 of 39 Page ID #:27 1 Inc. unless they pursued a divestiture—the very spin-out restructuring solution that 2 Plaintiffs had previously proposed as mitigation—but with one additional condition: 3 that the Treasury Department receive “a lot of money.” The President’s demands 4 for payments have no relationship to any conceivable national security concern and 5 serve only to underscore that Defendants failed to provide Plaintiffs with the due 6 process required by law. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -26COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 28 of 39 Page ID #:28 1 CLAIMS FOR RELIEF 2 Count 1: The Executive Order Violates the Due Process Clause of the Fifth Amendment 3 4 74. Plaintiffs reallege and incorporate by reference all prior paragraphs of 5 this Complaint and the paragraphs in the counts below as though fully set forth in 6 this count. 7 75. The Fifth Amendment to the U.S. Constitution provides: “No person 8 shall . . . be deprived of life, liberty, or property, without due process of law[.]” U.S. 9 Const. amend. V. The Due Process Clause of the Fifth Amendment requires that 10 parties deprived of their property receive adequate notice and an opportunity to be 11 heard. Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976). 12 76. TikTok Inc., as a U.S. entity, is unquestionably entitled to the 13 protections of the due process clause. N. Sec. Co. v. United States, 24 S. Ct. 436, 14 444 (1904) (“Corporations are persons within the meaning of the constitutional 15 provision forbidding the deprivation of property without due process of law, as well 16 as a denial of the equal protection of the laws.”). And ByteDance, as a foreign entity 17 that has substantial connections with and holds property located in the United States, 18 is entitled to those protections as well. See Nat’l Council of Resistance of Iran v. 19 Dept. of State, 251 F.3d 192, 203 (D.C. Cir. 2001) (foreign organizations that have 20 “entered the territory of the United States and established substantial connections 21 with this country . . . are entitled to the protections of the Constitution.”); Russian 22 Volunteer Fleet v. United States, 282 U.S. 481, 491–92 (1931) (foreign organization 23 that acquires or holds property in the U.S. may invoke the protections of the 24 Constitution when that property is placed in jeopardy by government intervention). 25 77. The executive order deprives TikTok Inc. and ByteDance of their 26 property rights by allowing the Secretary of Commerce to prohibit “any transaction” 27 by any person, or with respect to any property, subject to U.S. jurisdiction, with 28 ByteDance, TikTok Inc., or any of ByteDance’s other subsidiaries. Although the -27COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 29 of 39 Page ID #:29 1 exact breadth of Plaintiffs’ deprivation will remain uncertain until Defendants define 2 the covered transactions on September 20, 2020, the order plainly contemplates a 3 profound deprivation of Plaintiffs’ property rights, regardless of how broadly or 4 narrowly Defendants choose to implement it. 5 78. In the specific context of IEEPA, due process requires that Plaintiffs be 6 informed of the reasons for the executive order, so that they may have an adequate 7 ability to respond in a meaningful way. Al Haramain Islamic Found., Inc. v. U.S. 8 Dep’t of Treasury, 686 F.3d 965, 1001 (9th Cir. 2012) (holding that Treasury’s 9 Office of Foreign Assets Control violated organization’s due process rights by 10 “failing to provide an adequate statements of reasons for its investigation” under 11 IEEPA). 12 79. To date, Plaintiffs have received no notice or opportunity to respond to 13 the deprivation contemplated in the order, and the order provides for no such 14 opportunity for Plaintiffs to respond before or after the order takes effect. Instead, 15 the order facially contemplates that the government will not notify Plaintiffs of 16 which transactions are covered by the order until the same day the order takes effect 17 and deprives them of their rights. 18 19 20 21 22 23 80. The executive order is thus unconstitutional because it deprives Plaintiffs of their property rights without adequate due process. 81. Defendants’ due process violations will cause ongoing irreparable harm to Plaintiffs. Count 2: The Executive Order is Ultra Vires Because It Is Not Based on a Bona Fide National Emergency. (50 U.S.C. §§ 1701–1706) 24 25 82. Plaintiffs reallege and incorporate by reference all prior paragraphs of 26 this Complaint and the paragraphs in the counts below as though fully set forth in 27 this count. 28 83. IEEPA grants the President authority to regulate various international -28COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 30 of 39 Page ID #:30 1 economic transactions during wartime or upon declaration of a national emergency 2 “to deal with any unusual and extraordinary threat, which has its source in whole or 3 substantial part outside the United States, to the national security, foreign policy, or 4 economy of the United States.” 50 U.S.C. § 1701(a). 5 84. Before the President is empowered to exercise authority under IEEPA, 6 the President must first declare a national emergency for purposes of the NEA, 50 7 U.S.C. § 1601 et seq. 8 85. On May 15, 2019, President Trump declared that “the unrestricted 9 acquisition or use in the United States of information and communications 10 technology or services designed, developed, manufactured, or supplied by persons 11 owned by, controlled by, or subject to the jurisdiction or direction of foreign 12 adversaries augments the ability of foreign adversaries to create and exploit 13 vulnerabilities in information and communications technology or services, with 14 potentially catastrophic effects, and thereby constitutes an unusual and extraordinary 15 threat to the national security, foreign policy, and economy of the United States.” 16 See Executive Order 13873 (Securing the Information and Communications 17 Technology and Services Supply Chain). 18 86. In his August 6 executive order targeting TikTok, President Trump 19 drew upon the emergency declared in Executive Order 13873, asserting that 20 “additional steps must be taken to deal with the national emergency with respect to 21 the information and communications technology and services supply chain,” and 22 that, “[a]t this time, action must be taken to address the threat posed by one mobile 23 application in particular, TikTok.” 24 25 26 87. But the actions directed in the August 6 executive order are not supported by the emergency declared a year earlier in Executive Order 13873. 88. That previous executive order was designed to address asserted U.S. 27 national security concerns about certain telecommunications companies’ ability to 28 abuse access to “information and communications technology and services” that -29COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 31 of 39 Page ID #:31 1 “store and communicate vast amounts of sensitive information, facilitate the digital 2 economy, and support critical infrastructure and vital emergency services, in order 3 to commit malicious cyber-enabled actions, including economic and industrial 4 espionage against the United States and its people.” 89. 5 TikTok Inc. is not a telecommunications provider and it does not 6 provide the types of technology and services contemplated by the 2019 executive 7 order. 8 “facilitate the digital economy,” and TikTok Inc. has no role in providing “critical 9 infrastructure and vital emergency services.” Rather, TikTok Inc. is a social media 10 company, and the TikTok mobile application is a software platform on which users 11 express their views and opinions in short form video. Specifically, TikTok Inc. does not provide the hardware backbone to 90. 12 Apart from its misplaced reliance on Executive Order 13873, the order 13 also fails on its face to identify any actual threat that TikTok poses to the national 14 security of the United States. 15 explanation and in direct conflict with the voluminous agency record of TikTok’s 16 robust data security practices, that TikTok (i) engages in data collection practices 17 that “potentially allow[] China” to make use of U.S. user data for nefarious purposes, 18 (ii) “reportedly censors content,” and (iii) “may be used for disinformation 19 campaigns.” 20 foundation, do not constitute a bona fide national emergency. 91. 21 41 As noted above, the order states, without any These speculative assertions, made without any evidentiary The executive order is accordingly ultra vires because it is not based on 22 a bona fide national “emergency” as that term was used by Congress. The text of 23 IEEPA requires that an “emergency” be an “unusual and extraordinary threat.” 50 24 U.S.C. § 1701(a). The legislative history of IEEPA makes clear that emergencies 25 within the meaning of the statute are “rare and brief” as opposed to “normal, ongoing 26 problems.” See Revision of Trading With the Enemy Act: Markup Before the H. 27 41 28 White House, Executive Order on Addressing the Threat Posed by TikTok (Aug. 6, 2020), https://www.whitehouse.gov/presidential-actions/executive-orderaddressing-threat-posed-tiktok/ (emphasis added). -30COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 32 of 39 Page ID #:32 1 2 Comm. on Int’l Relations, 95th Cong. 4 (1977). 92. Because President Trump issued the executive order targeting Plaintiffs 3 for political and strategic purposes pertaining to his political campaign, and not to 4 deal with an “unusual and extraordinary threat” to the national security, foreign 5 policy, or the economy of the United States, the executive order is ultra vires. 6 7 8 9 10 11 93. Defendants’ ultra vires violation will cause ongoing irreparable harm to Plaintiffs. Count 3: The Executive Order is Ultra Vires Because Its Prohibitions Are Broader Than the Purported Unusual or Extraordinary Threat Invoked by the President. (50 U.S.C. §§ 1701–1706) 94. Plaintiffs reallege and incorporate by reference all prior paragraphs of 12 this Complaint and the paragraphs in the counts below as though fully set forth in 13 this count. 14 95. The President’s authority under IEEPA “may only be exercised to deal 15 with an unusual and extraordinary threat . . . and may not be exercised for any other 16 purpose.” 50 U.S.C. § 1701(b). 17 96. Even if the executive order did deal with an “unusual and extraordinary 18 threat,” the order by its very terms identifies that threat as being posed “by one 19 mobile application in particular, TikTok.” The President made no findings as to 20 ByteDance or any of its subsidiaries other than TikTok Inc. and did not declare a 21 national emergency related to those entities. 22 97. The executive order, however, is not limited to TikTok Inc., the U.S. 23 entity, or the TikTok application. Instead, the order prohibits “any transaction . . . 24 with ByteDance Ltd. . . . or its subsidiaries, in which any such company has an 25 interest . . . .” The order thus, by its very terms, goes far beyond the purported threat 26 identified by the President and beyond the scope of any executive action that could 27 reasonably be needed to deal with that threat. 28 98. Because the purported threat, even taken at face value, is limited to -31COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 33 of 39 Page ID #:33 1 TikTok “in particular,” the order’s ban on any transactions with ByteDance or its 2 subsidiaries is plainly overbroad to the extent that it authorizes the Secretary of 3 Commerce to prohibit transactions related to ByteDance more broadly, including its 4 other applications that are available in the United States, such as the video-editing 5 application CapCut and the communications software Lark. 6 authorized by the text of the order wholly fail to distinguish TikTok from 7 ByteDance’s other U.S. products and services. 8 9 10 11 12 13 14 15 99. The prohibitions The executive order is therefore ultra vires because it authorizes the prohibition of activities that have not been found to be an unusual and extraordinary threat, as required by IEEPA. 100. Defendants’ ultra vires violation will cause ongoing irreparable harm to Plaintiffs. Count 4: The Executive Order is Ultra Vires Because It Restricts Personal Communications and the Transmission of Informational Materials in Violation of IEEPA (50 U.S.C. §§ 1701–1706) 16 101. Plaintiffs reallege and reincorporate by reference all prior paragraphs 17 of this Complaint and the paragraphs in the counts below as though fully set forth 18 herein. 19 102. The authority granted to the President under IEEPA “does not include 20 the authority to regulate or prohibit, directly or indirectly . . . any postal, telegraphic, 21 telephonic, or other personal communication, which does not involve a transfer of 22 anything of value.” 50 U.S.C. § 1702(b)(1). 23 103. A separate “informational materials exception” protects the import and 24 export of “any information or informational materials, including but not limited to, 25 publications, films, posters, phonograph records, photographs, microfilms, 26 microfiche, tapes, compact disks, CD ROMs, artworks, and news wire feeds,” 27 regardless “of format or medium of transmission,” so long as the materials are not 28 independently controlled for export through operation of specified regulations. Id. -32COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 34 of 39 Page ID #:34 1 2 3 § 1702(b)(3). 104. The TikTok application transmits and stores both personal communications and informational materials within the meaning of IEEPA. 4 105. By purporting to ban the TikTok application in the United States, the 5 executive order necessarily restricts personal communications and the transmission 6 of informational materials. 7 106. The executive order is therefore ultra vires because it authorizes the 8 prohibition of activities that are expressly carved out from the President’s authorities 9 under IEEPA. 10 11 12 107. Defendants’ ultra vires violation will cause ongoing irreparable harm to Plaintiffs. Count 5: IEEPA Violates the Non-Delegation Doctrine 13 108. The U.S. Constitution provides for separation of powers between the 14 branches of our government to avoid excessive concentration of power in any single 15 branch. The Constitution vests legislative power in the Congress, executive power 16 in the President, and judicial power in the courts, U.S. Const., arts. I–III, and it limits 17 the delegation of those powers to any other branch. 18 109. Congress can delegate its legislative functions to another branch only 19 if “Congress has supplied an intelligible principle to guide the delegee’s use of 20 discretion.” Gundy v. United States, 139 S. Ct. 2116, 2123 (2019). 21 110. In enacting IEEPA, Congress delegated legislative authority to the 22 President, empowering the President to declare a national emergency and take action 23 “to deal with any unusual and extraordinary threat, which has its source in whole or 24 substantial part outside the United States, to the national security, foreign policy, or 25 economy of the United States.” 50 U.S.C. § 1701. 26 111. The ambiguity and breadth of President Trump’s executive order 27 highlights that the President’s ability to invoke a national emergency under IEEPA 28 is so open-ended that Congress has not supplied an “intelligible principle” to guide -33COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 35 of 39 Page ID #:35 1 Executive Branch decision-making authority. Gundy, 139 S. Ct. at 2123. Instead, 2 Congress’s passage of IEEPA has in practice amounted to “merely announc[ing] 3 vague aspirations and then assign[ing] others the responsibility of adopting 4 legislation to realize its goals.” Id. at 2133 (Gorsuch, J., dissenting). Such an 5 expansive delegation of authority runs afoul of core constitutional values of 6 accountability and the separation of powers. 7 112. The lack of any intelligible principle to guide or constrain the 8 President’s action is manifest in the TikTok executive order, which purports to ban 9 a U.S. company based in part on the content of the communications transmitted on 10 its platform and without any bona fide national security basis. This overbroad 11 exercise of authority confirms that the statute has become “nothing more than the 12 will of the current President.” Id. at 2135 (Gorsuch, J., dissenting). 13 14 15 16 17 18 113. The executive order is accordingly unconstitutional because IEEPA violates the non-delegation doctrine. 114. President Trump’s unconstitutional exercise of IEEPA authority will cause ongoing irreparable harm to Plaintiffs. Count 6: The Executive Order Violates the Takings Clause of the Fifth Amendment 19 115. Plaintiffs reallege and incorporate by reference all prior paragraphs of 20 this Complaint and the paragraphs in the counts below as though fully set forth in 21 this count. 22 23 116. The Takings Clause provides that private property shall not “be taken for public use, without just compensation.” U.S. Const. amend. V. 24 117. The President has repeatedly made demands for a “very substantial” 25 payment to the U.S. Treasury Department as a condition of approving a divestiture 26 of TikTok Inc.’s U.S. assets and has made clear that, in the absence of such a 27 28 -34COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 36 of 39 Page ID #:36 1 divestiture and payment, he would ban TikTok.42 2 118. There is no conceivable regulatory basis for such a demand—or for the 3 executive order’s destruction of Plaintiffs’ business more generally—and this 4 unjustifiable 5 investment-backed expectations. See Penn Cent. Transp. Co. v. City of New York, 6 438 U.S. 104, 124 (1978). deprivation interferes with Plaintiffs’ legitimate 119. Defendants have accordingly violated the Takings Clause of the Fifth 7 8 economic Amendment. 9 120. Defendants’ taking in violation of the Fifth Amendment will cause 10 ongoing irreparable harm to Plaintiffs, for which there is no adequate remedy at law. 11 12 Count 7: The Executive Order Violates the First Amendment Right to Free Speech. 13 121. Plaintiffs reallege and incorporate by reference all prior paragraphs of 14 this Complaint and the paragraphs in the counts below as though fully set forth in 15 this count. 122. By preventing TikTok from operating in the United States, the 16 17 executive order violates Plaintiffs’ First Amendment rights in and to its code. 18 123. “Like music and mathematical equations, computer language is just 19 that, language, and it communicates information either to a computer or to those who 20 can read it.” Bernstein v. U.S. Dep’t of State, 922 F. Supp. 1426, 1435–36 (N.D. 21 Cal. 1996); Green v. U.S. Dep’t of Justice, 392 F. Supp. 3d 68, 86 (D.D.C. 2019). 22 “Because computer source code is an expressive means for the exchange of 23 information and ideas about computer programming[,] it is protected by the First 24 Amendment.” Junger v. Daley, 209 F.3d 481, 485 (6th Cir. 2000). 25 124. “As computer code—whether source or object—is a means of 26 expressing ideas, the First Amendment must be considered before its dissemination 27 42 28 Fadel Allassan, Trump says TikTok will be banned if not sold by Sept. 15, demands cut of sale fee, Axios (Aug. 3, 2020), https://www.axios.com/trump-tiktok-bannedmicrosoft-fd45748d-1ee8-4f4a-812a-09ec76d6f8e2.html. -35COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 37 of 39 Page ID #:37 1 may be prohibited or regulated,” Universal City Studios, Inc. v. Reimerdes, 111 F. 2 Supp. 2d 294, 326–27 (S.D.N.Y. 2000), regardless of whether the executive order 3 targets TikTok because of its content or the order has only an incidental effect on 4 TikTok Inc.’s speech. Only “the scope of the protection for computer code depends 5 upon whether the restriction on the code is because of its content,” not the fact of 6 protection itself. 321 Studios v. Metro Goldwyn Mayer Studios, Inc., 307 F. Supp. 7 2d 1085, 1099–100 (N.D. Cal. 2004) (emphasis added); see also Junger, 209 F.3d 8 at 484. 9 125. The executive order facially burdens TikTok Inc.’s speech for both 10 functional and content-based reasons. The order specifically justifies targeting 11 TikTok based in part on the content of the videos hosted on TikTok, citing concerns 12 about videos on “politically sensitive” topics and videos about the “origins of the 13 2019 Novel Coronavirus.” 14 126. The contemplated scope of the order—banning any transactions with 15 TikTok Inc. and ByteDance, and, according to the President’s statements, forcing 16 TikTok to “close down” altogether—is “greater than essential to the furtherance” of 17 any government interest underlying the order. 321 Studios, 307 F. Supp. 2d at 1100. 18 The vast majority of TikTok videos could not reasonably be construed to in any way 19 relate to national security, nor is its user data more susceptible to collection by 20 Chinese authorities than from any number of other sources. 21 127. The overbroad nature of the order is readily apparent in light of 22 Plaintiffs’ extraordinary proposals to restructure the U.S. TikTok business, which 23 would address any purported national security concerns asserted in the executive 24 order. 25 26 27 28 128. Because the executive order is broader than necessary to serve any governmental interest, the order violates TikTok Inc.’s First Amendment rights. 129. Defendants’ violation of TikTok Inc.’s First Amendment rights will cause ongoing irreparable harm to Plaintiffs. -36COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 38 of 39 Page ID #:38 REQUESTED RELIEF 1 2 WHEREFORE, Plaintiffs pray that this Court grant the following relief: 3 (1) Issue a declaratory judgment pursuant to 28 U.S.C. § 2201(a) that the 4 August 6, 2020 executive order (No. 13942) is unlawful and 5 unconstitutional; 6 (2) Issue an order invalidating the August 6, 2020 executive order 7 (No. 13942), preliminarily and permanently enjoining Defendants from 8 implementing or enforcing the August 6, 2020 executive order 9 (No. 13942), and preserving the status quo; 10 11 (3) Grant any other and further relief that this Court may deem just and proper. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -37COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 2:20-cv-07672-ODW-MAA Document 1 Filed 08/24/20 Page 39 of 39 Page ID #:39 1 DATED: August 24, 2020 Respectfully submitted, 2 /s John E. Hall 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Beth S. Brinkmann (SBN 129937)** Alexander A. Berengaut* Megan C. Keenan* COVINGTON & BURLING LLP Washington, DC One CityCenter 850 Tenth Street, NW Telephone: +1 (202) 662-6000 Facsimile: + 1 (202) 778-6000 Email: bbrinkmann@cov.com aberengaut@cov.com mkeenan@cov.com . John E. Hall (SBN 118877) Anders Linderot* COVINGTON & BURLING LLP The New York Times Building 620 Eighth Avenue New York, New York 10018-1405 Telephone: +1 (212) 841-1000 Facsimile: + 1 (212) 841-1010 Email: jhall@cov.com alinderot@cov.com Mitchell A. Kamin (SBN 202788) Benjamin G. Cain (SBN 325122)** COVINGTON & BURLING LLP 1999 Avenue of the Stars, Suite 3500 Los Angeles, California 90067-4643 Telephone: + 1 (424) 332-4800 Facsimile: + 1 (424) 332-4749 Email: mkamin@cov.com bcain@cov.com Attorneys for Plaintiffs *Pro hac vice application forthcoming **C.D. California admission forthcoming 18 19 20 21 22 23 24 25 26 27 28 -38COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF