The June 10, 2020 Trending Law Blog post discussed President Donald Trump’s plan to strongly regulate or close down certain social media platforms and the Executive Order he issued on May 28, 2020 to accomplish that goal. Thereafter, on August 6, 2020, President Trump issued two additional Executive Orders – Executive Order 13942 (to address “the threat” posed by the social networking service TikTok) and Executive Order 13943 (to address “the threat” posed by the messaging, social media and mobile payment app WeChat). The legality of both of the Executive Orders were successfully challenged in two district courts with preliminary injunctions being granted by two judges to enjoin the implementation, in part, of the two Executive Orders.
Executive Order 13943 – WeChat
On September 19, 2020, Magistrate Judge Laurel Beeler of the United States District Court for the Northern District of California issued a preliminary injunction against the implementation of Executive Order 13943. In the action, plaintiffs, who were users of the WeChat App, challenged the legality of the Executive Order, which prohibited undefined transactions relating to WeChat because of national security concerns.
Plaintiffs asserted several constitutional, statutory and procedural bases in their complaint and in support of their application for a preliminary injunction. The court relied on one of those arguments to grant the relief, finding that plaintiffs had “shown serious questions going to the merits of the First Amendment claim, the balance of hardships tips in the plaintiffs’ favor, and the plaintiffs establish sufficiently the other elements for preliminary-injunctive relief.”
The court did not find, however, that plaintiffs had shown a likelihood of success on the merits at this stage of the proceedings for all of their asserted claims. Nevertheless, because of her findings with regard to the First Amendment claim, and despite the significant national security and foreign policy concerns raised by the government, Magistrate Beeler issued the preliminary injunction to prevent the government from banning the WeChat app.
Executive Order 13942 – TikTok
Less than a week later, on September 27, 2020, U.S. District Judge Carl J. Nichols of the United States District Court for the District of Columbia, issued a preliminary injunction in favor of TikTok Inc. and its parent company, ByteDance, and temporarily blocked a ban on TikTok from going into effect. In this case, plaintiffs filed a complaint on September 18, 2020 which asserted claims similar to those filed by the WeChat plaintiffs a month earlier. The TikTok plaintiffs moved for injunctive relief when the Trump administration, citing national security concerns, sought to ban the TikTok app from Google’s and Apple’s app stores.
Unlike the WeChat decision, which relied on the First Amendment, Judge Nichols ruled in the TikTok case that the government’s actions were improper under the International Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. §§ 1701-08. Specifically, the court found that the prohibitions against TikTok “likely exceeded the lawful bounds proscribed by IEEPA” because the statute contains four “exceptions to grant of authority” to the President and two of those exceptions applied here. First, Judge Nichols held that the statute specifically did not permit the President to regulate or prohibit the importation or exportation of information or informational materials. And, second, he found that IEEPA also did not grant the President authority to regulate or prohibit certain personal communications which were also applicable here. Based on these two statutory exceptions, Judge Nichols found that the plaintiffs had demonstrated a likelihood of success on the merits with regard to the IEEPA claim and would suffer irreparable harm in the absence of a preliminary injunction.
Although WeChat and TikTok both succeeded in obtaining preliminary injunctive relief, it remains to be seen of the injunctions will remain in effect. On October 2, 2020, the government filed a Notice of Appeal of Magistrate Judge Beeler’s decision in the WeChat case. No Notice of Appeal has been filed yet with regard to the TikTok matter as of this writing. Time will tell.
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For any question relating to this article, please contact Robert B. Nussbaum, Esq. at Saiber LLC.
Rob Nussbaum has lectured numerous times on legal issues and social media and how social media and other electronic evidence may be admitted into evidence at trial. He concentrates his practice in general commercial litigation and appears regularly in New Jersey federal and state courts.
For any questions relating to whether your website or social media presence can be used against you as a basis for personal jurisdiction, please contact Robert B. Nussbaum, Esq. at Saiber LLC.