Richter doubts Trump's plan: Tiktok ban may be illegal

A US court overturns the planned download stop for the Tiktok video app. The competent judge justifies the decision with legal concerns about the government's project. This refers to an emergency law – but apparently tries to circumvent a crucial clause.

US President Donald Trump encounters legal limits in his crackdown on the Tiktok video app. A judge in Washington doubts the legal basis for the sanctions. That was the main reason why he suspended the download stop in the USA at the last moment by means of an injunction.

Tiktok belongs to the Chinese company Bytedance. Trump describes the app as a security risk because Chinese authorities could use it to obtain data from US citizens. With two decrees he laid the foundation for the end of Tiktok in the USA. The Ministry of Commerce implemented them with specific orders.

Trump relied on a law that grants a president broad emergency powers in the event of extraordinary dangers from abroad. The catch, however, is that the import and export of information or information material as well as personal communication without the transfer of material values ​​are excluded. Tiktok argued that the service fell into these categories – and the judge from Washington found that convincing after analyzing the legal requirements.

Government tries to circumvent the law

The US government had tried to avoid the exception by formally prohibiting only business transactions. For example, in the case of the download stop, the provision of infrastructure to make the application available in app stores. This means that there is neither a direct ban on exchanging information, nor any action against users, the government said. However, the judge Carl Nichols countered that it would still indirectly regulate the flow of information. In addition, the app exists mainly for the exchange of content protected by the exception – and should therefore not be viewed separately from it.

The government criticized that such a reading restricts the President's options, for example to fight against a foreign country taking control of data. "Congress couldn't have wanted it that way." The judge replied that there was something to the argument, especially since opponents of the US are very active in data and information services. "But it is not supported by the legal text".

The judges' decision also shows that the government even used the Anti-Espionage Act to help. This in turn allows action to be taken against information offers – "as an exception to the exception, so to speak," as the judge noted. However, it is a matter of incurring the death penalty or life imprisonment for disclosing US military secrets.

Further decision is still pending

It was "implausible" that the videos, photos and even personal information that users shared on Tiktok fell under the espionage law, said Nichols. The judge initially only suspended the download stop, which US users should feel on Monday. He did not take action against the second step of the sanctions, in which the app should no longer work in the USA after November 12th. That should be decided later.

Without the injunction, the app would have disappeared from Apple and Google's American app stores. Users who already have it on their smartphones would have been able to access Tiktok as before. However, you could no longer download the app again.

Overall, the situation around Tiktok remains unclear. Trump had already announced that he had approved a fundamental deal that would ensure the continued existence of Tiktok in the USA through the entry of the American companies Oracle and Walmart. But since then there have been contradicting statements about whether the new US partners or Bytedance should hold the majority in the global Tiktok business – and the conclusion of a final agreement is still being delayed.

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