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US-China tensions

TikTok takes Trump to court with powerful Washington law firm

'Unconstitutional' ban denies due process and stifles speech, app maker argues

ByteDance has only weeks left to sell TikTok's operations in the U.S. before the wildly popular short-video app is shut out.   © Reuters

PALO ALTO, U.S. -- TikTok filed suit Monday against President Donald Trump's executive order that will soon bar transactions in the U.S. with the popular short-video app and its Chinese parent, ByteDance.

A complaint filed in a California federal court calls the executive order "unlawful and unconstitutional" for reasons including violating the U.S. Constitution's protections for due process of law and freedom of speech.

Covington & Burling -- a Washington, D.C.-headquartered international law firm that has represented Huawei Technologies, Samsung Electronics and Microsoft -- has been retained to represent plaintiffs TikTok and ByteDance.

Trump, Commerce Secretary Wilbur Ross and the Commerce Department are defendants in the new case.

Trump signed two executive orders in early August prohibiting as-yet-unspecified "transactions" with ByteDance and with Tencent Holdings-owned messaging app WeChat, effective Sept. 20. The administration has separately ordered ByteDance to unload TikTok in the U.S. by Nov. 12, a deadline that can be extended by 30 days.

TikTok said it tried to engage for nearly a year with a Trump administration that ultimately ignored the "voluminous documentation and information" ByteDance provided.

"We do not take suing the government lightly, however we feel we have no choice but to take action to protect our rights, and the rights of our community and employees," TikTok said in a statement.

ByteDance is in talks with potential buyers including Microsoft on the sale of TikTok operations in the U.S. But Trump has repeatedly demanded a "very substantial" payment to the Treasury Department as a condition for approving the divestiture and threatened to ban TikTok otherwise. This demand violates TikTok's Fifth Amendment due-process rights, the company argues in the lawsuit.

Preventing TikTok from operating in the U.S. will violate First Amendment rights by restricting TikTok's freedom of speech for "both functional and content-based reasons," according to the complaint.

Both TikTok and WeChat bans were issued by Trump under powers in the 1977 International Emergency Economic Powers Act and declared the Chinese apps to have caused a "national emergency."

But Section 1702 of that law specifically denies the president the authority to "regulate or prohibit, directly or indirectly ... any postal, telegraphic, telephonic, or other personal communication, which does not involve a transfer of anything of value," so Trump cannot use the act to ban such social media apps as TikTok, the company argues.

Trump's efforts to ban TikTok and WeChat will likely be challenged in court by multiple groups.

WeChat users in the U.S. sued Trump and Ross in another California federal court Friday, arguing that the ban on the popular Chinese messaging app violates their constitutional rights.

TikTok employees also filed their own federal lawsuit Monday against Trump and Ross. Technical program manager Patrick Ryan said on GoFundMe that he is suing on behalf of 1,500 TikTok and ByteDance employees at risk of not being paid when Trump's order takes effect. Blackstone Law Group and prominent internet rights lawyer Mike Godwin represent the plaintiffs.

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