Judge’s ruling creates fresh hurdle for Trump’s TikTok ban

The decision by a federal judge Sunday to temporarily block a federal ban on TikTok marks another setback to President Trump’s efforts to quickly overhaul how the Chinese-owned platform does business in the U.S.

The ruling also creates more confusion around the wildly popular video app’s continued U.S. operations. Beijing-based ByteDance has yet to receive final approval from the federal government on its new business arrangement with Oracle and Walmart, and the pending deal does not appear to require the Chinese company to fully divest itself of TikTok.

All of the concerns around TikTok also feed into broader efforts by the Trump administration to clamp down on Chinese tech companies across various sectors as tensions between the two countries increase.

U.S. District Judge Carl Nichols, a Trump appointee, cited larger concerns around China in a ruling unsealed Monday, writing that while the Trump administration “has provided ample evidence that China presents a significant national security threat,” the “specific evidence of the threat” posed by TikTok “remains less substantial.”

The order allows TikTok to operate normally in the U.S. at least until a full court hearing can be held. The hearing has not yet been scheduled.

The order by Nichols blocks a Commerce Department deadline that would have removed TikTok from app stores on Sept. 27, though Trump’s executive order from August does not prevent the app’s use on U.S. devices that have already downloaded TikTok. The judge’s order leaves in place a Nov. 12 deadline that would completely ban the use of TikTok in the U.S. if a deal is not reached between the Trump administration and the company.

The Nov. 12 date coincides with efforts by the Treasury Department’s Committee on Foreign Investment in the United States (CFIUS) to come to a conclusion on TikTok and on Chinese communications app WeChat. Should a deal be reached, the court case will likely be dropped.

The court case is in response to a pair of executive orders issued by Trump in August that are aimed at forcing ByteDance to divest itself of TikTok due to national security concerns.

Brian Fleming, former counsel to the assistant attorney general for national security at the Justice Department during the Obama and Trump administrations, told The Hill that he believed a deal will ultimately be reached allowing the app to continue operating.

“There is too much at stake for a deal not to be reached, and that goes from all sides of it,” said Fleming, who is a member of law firm Miller and Chevalier Chartered.

He pointed to the Trump administration wanting to “claim victory and save face” after both the Commerce Department actions against TikTok and WeChat were temporarily scuttled in court. A federal judge in California also issued a temporary injunction halting the government’s ban against WeChat, which is often used by Chinese Americans to communicate with friends and family in China.

As of Monday, the proposed TikTok deal under consideration by both Beijing and Washington would establish a U.S.-headquartered TikTok Global and include a partnership with American companies Oracle and Walmart, but would preserve the involvement of ByteDance.

Fleming noted that should the deal with the CFIUS not be reached, the administration would likely need to give the court evidence of specific national security risks related to TikTok in order to win the case, such as providing classified evidence.

“The public version of the stated national security considerations, while broadly speaking are compelling, are not necessarily tied very neatly to the considerations that are animating the ban,” Fleming said.

Moves against TikTok and WeChat follow efforts by the Trump administration and Congress to clamp down on other Chinese tech companies, including telecommunications giant Huawei and Chinese chipmaker SMIC, citing concerns around the companies’ ties to the Chinese government and the security of U.S. data.

Geoffrey Gertz, a fellow in the Global Economy and Development program at the Brookings Institution, told The Hill that a “bigger, more long-term question” revolves around the Trump administration being more “transparent” with the public, including more than 100 million TikTok users in the U.S., about specific security risks.

“A lot of people are asking questions of whether this is legitimate national security or just a way for Trump to go after China,” Gertz said. “The U.S. government needs to be able to persuade people who are skeptical of its motivations that they are, in fact, in good faith.”

Both TikTok and WeChat have fought back against the administration, with TikTok applauding the temporary order handed down over the weekend.

“We will continue defending our rights for the benefit of our community and employees,” a TikTok spokesperson told The Hill in a statement. “At the same time, we will also maintain our ongoing dialogue with the government to turn our proposal, which the President gave his preliminary approval to last weekend, into an agreement.”

TikTok has also taken steps to address some security concerns, including moving user data to the U.S., opening its algorithm to scrutiny by cybersecurity experts and publishing transparency reports.

The outcomes for TikTok and WeChat could differ based on the Commerce Department’s seemingly harder stance against WeChat and on TikTok’s much broader presence in the U.S.

“The WeChat case is always going to be a little trickier, and I think on the whole might be a greater chance of success ultimately for the government because it is not a U.S. company, the U.S. presence is substantial because of the user base, but at the same time it’s not as deeply rooted in the U.S. as it is in China,” Fleming said.

TikTok and WeChat could also face different fates based on the results of the U.S. presidential election.

Democratic presidential nominee Joe Biden told reporters last week that he was concerned about the access TikTok has to U.S. user data, and the Biden campaign ordered staffers to delete the app from their devices in July.

Fleming noted that while he expected a deal to be reached before Election Day to prevent a “startling deal of uncertainty” in hammering out a deal during a potential administration change, a Biden administration would likely still take a hard-line stance against Chinese tech groups.

“If the end goal here is to centralize control of the data in the US and take away the ability of Beijing and the Chinese government to have access to that data and do mischief to it, even if Biden were to win, I don’t think he and his national security team would view that as unworthy goals. I don’t think there would be any moves or signals afoot to undo any of that,” Fleming said.