What are the odds of TikTok suing the US government for ＂seven deadly sins＂？

　　Beijing, Beijing, August 27 th: TikTok v. the US government’s "seven deadly sins". What is the odds?

　　Zhongxin. com reporter Wang Qingkai

　　In response to the executive order signed by US President Trump on August 6th, TikTok (Tik Tok International Edition) filed a complaint with the US judicial authorities on August 24th (Beijing time on August 25th). The complaint advocates the abolition of the executive order issued by Trump on August 6, and advocates prohibiting the Ministry of Commerce from implementing the executive order.

　　Prior to this, on August 6, Trump signed an executive order, which will ban any transaction between anyone or enterprise under the jurisdiction of the United States and TikTok’s parent company after 45 days. On August 14th, Trump signed another executive order, requiring ByteDance to sell or divest the company’s TikTok business in the United States within 90 days.

　　Why does the US government ask ByteDance to sell or divest the company’s TikTok business in the United States? If the U.S. government’s ban comes into effect, what impact will it have on TikTok? What are the odds of TikTok suing the US government?

　　"Seven deadly sins"

　　The content of the complaint provided by TikTok to the reporter of China News Service pointed out that the administrative order of the US government involved "seven deadly sins", four of which were unconstitutional and three were ultra vires. For example:

　　The process of the executive order is unconstitutional: ByteDance and TikTok were not informed about the TikTok ban, and no opportunity to appeal was provided, which violated the provisions of the Fifth Amendment of the US Constitution on due process.

　　The basis for the promulgation of the executive order is illegal, which constitutes ultra vires: IEEPA gives the President of the United States the power to restrict and control economic transactions in order to protect national security, foreign policy and economy, based on the national emergency to deal with "abnormal conditions and special threats". The executive order uses vague expressions such as "potential", "possible" and "reported" throughout, and there is no evidence that ByteDance poses an actual threat.

　　It is unconstitutional for the executive order to force the payment to the US Treasury for the sale of TikTok’s American assets: this violates the provisions of the Fifth Amendment on restricting the government’s power to deprive private property.

　　… …

　　According to the complaint, ByteDance has been trying to actively communicate with the US government for nearly a year since October 2019. However, according to the agency, it has repeatedly refused to contact ByteDance about its concerns.

　　It is reported that this lawsuit was jointly filed by TikTok and ByteDance, and the litigants included US President Trump, US Secretary of Commerce Ross and US Department of Commerce.

　　At the same time, in response to the previous ban on all transactions with TikTok and ByteDance, ByteDance is also preparing a "shutdown plan".

　　What is the basis of the executive order of the US government?

　　The executive order signed by U.S. President Trump on August 6th means that from September 20th, any American company or individual will not be able to trade with ByteDance, TikTok’s parent company in China. For example, TikTok will not be able to APPear in American app stores such as Apple AppStore; TikTok can’t pay American employees either.

　　This is a chronic poison for TikTok. TikTok has more than 100 million users in the United States. If it can’t APPear in the app store in the United States, TikTok will gradually be abandoned by users with the iteration of smart phones.

　　What is the basis for the overbearing "ban" of the US government?

　　Sun Yuanzhao, executive director of the Asia-Pacific Institute of Law (APLI) in the United States, told the China News Service that the presidential order issued by the President of the United States to TikTok was based on the International Emergency Economic Power Act (IEEPA) as amended in 1977. This bill empowers the president to impose economic sanctions when he encounters "unusual and very serious threats", such as "national security is threatened".

　　According to the precedent that the president of the United States was authorized by IEEPA to issue an executive order, the conditions for the president to be authorized are: when the United States is in wartime or emergency, it faces "abnormal or special threats." Only when these two conditions are met can the president invoke the executive order issued by IEEPA to regulate international economic transactions.

　　According to lawyer Wang Xinrui, a senior partner of Beijing Anli Law Firm, the International Emergency Economic Power Act (IEEPA), on which the executive order is based, is an implementation rule of the National Emergency Law. Therefore, according to the law, the US Congress has the right to terminate the national emergency by means of a joint resolution, or to introduce laws to restrict the president’s power in IEEPA.

　　However, Wang Xinrui told the China News Service reporter that from the public information, so far, no member of Congress has proposed a resolution to terminate the state of emergency, which also shows that the US Congress is consistent with the president on this issue, and it is not a state of mutual restraint.

　　What are the odds?

　　In fact, Tiktok himself knows that he told the China News Service reporter on the 25th that "this is a challenge with little chance of winning".

　　In Sun Yuanzhao’s view, as far as the first executive order of the U.S. government on August 6 is concerned, there are many flaws in both procedure and substance. However, because the United States adopts a constitutional system of separation of powers, the courts generally give high respect to the president’s behavior in handling national security or foreign affairs, and are unwilling to say more, so as not to exceed their powers and improperly interfere with the executive power.

　　Sun Yuanzhao said that the president of the United States enjoys great discretion in this field, and the courts generally give the president "great respect" in past cases.

　　However, recent cases show that if there are serious flaws in the rights and interests guaranteed by the constitution or the procedures behind it, the court may still intervene. Therefore, this case is not completely one-sided.

　　Sun Yuanzhao believes that TikTok should have the opportunity to fight with the US government. And this case does not rule out the possibility of eventually going all the way to the Federal Supreme Court. This means that there is still a long and arduous road to go. "But this also allowed TikTok to win valuable time."

　　In Wang Xinrui’s view, there is little chance for ByteDance to sue the US government, but the proceedings are meaningful, which can further clarify the problem and show confidence to the outside world. "If you silently accept an unjust administrative order, it is tantamount to admitting that you are indefensible. Even if you can’t win in the end, forcing the other party to make this matter clear and make the rules clearer is also beneficial to the enterprise. "

　　Sun Yuanzhao predicted that if the federal district court agreed to grant an injunction, the US government would immediately appeal. This means that before the whole case has entered the real substantive trial stage, the two sides will spend several months entangled in this point. This can also buy Tik Tok valuable time. If the district court refuses to grant an injunction, Tik Tok can still appeal, but at this time, I’m afraid the order has taken effect, so there is no time.

　　"The best result is, of course, to overturn or partially overturn the administrative order, but it seems difficult; The worst result is that the court decides to continue to execute the administrative order, and the lawsuit will not have the effect of delaying the procedure, "Wang Xinrui said.

　　The content industry has a long way to go.

　　TikTok achieved explosive growth in the United States and around the world before it was banned by the executive order of the US government. At present, TikTok has covered more than 200 countries, with more than 2 billion downloads worldwide and more than 91 million monthly active users in the United States.

　　"There are two bans on Tiktok, which shows that the US government is arrogant and unreasonable." Li Mingde, a professor at Xi ‘an Jiaotong University and dean of the School of Journalism and New Media, told the China News Service that managing the Internet according to law is a common practice in all countries in the world, but the reason given by the executive order of the US government is national security, which is unreasonable and far-fetched.

　　In fact, in order for the enterprise to operate normally, TikTok has been actively proposing solutions to reduce American concerns about national security. For example, the top security measures in the industry have been taken to ensure users’ privacy and data security, and a transparency center has been set up, so that internal and external experts can observe TikTok’s content audit and check the algorithm source code in real time.

　　"This transparent behavior is unmatched by other major social platforms and makes TikTok ahead of the industry." The complaint pointed out that surpassing the safety of the industry did not help TikTok avoid deliberate encirclement and suppression.

　　In Li Mingde’s view, behind the high-sounding reason is distrust of China enterprises, which is also a kind of political manipulation: all technologies that come from China and are superior to the United States are all in the range of "decoupling". Although it has a high usage rate and credibility among the American people. "This also corrects a long-standing stereotype: technology has national boundaries and application is politics."

　　In recent years, China’s network technology has developed by leaps and bounds, and various software development and application for different consumer classes are surging. However, software is often closely tied with content and applies to each other. Li Mingde believes that Tiktok’s restriction in the United States will affect China’s content industry to go abroad. After all, there are a large number of active followers behind the United States, which have the role of demonstrating and leading.

　　Wu Fei, director of the Center for Public Diplomacy and Strategic Communication of Zhejiang University, said that the TikTok incident sounded the alarm for China, that is, if TikTok is kicked out of the United States, it may mean that the globalization of such industries in China will be very difficult in the future.

　　TikTok told China News Service that the company has made the worst plan to shut down its business in the United States. Because the shutdown involves more than 1,500 employees and thousands of partners of TikTok in the United States, the company is intensively evaluating the damage to the legitimate rights and interests of employees, users and partners after the shutdown, and simultaneously making security plans.