Read the original article: TikTok Wins Round One: An Overview of Judge Nichols’s Preliminary Injunction Ruling
Sunday, Sept. 27, was a dramatic win for TikTok (which was only fitting, considering the style of its typical popular content). It had initially dodged sanctions thanks to its proposed deal with Oracle and Walmart, but enthusiasm for that deal had been waning in both Washington and Beijing (and for seemingly irreconcilable reasons). Barring judicial intervention, an initial sanction would have kicked in at midnight on Sunday, barring app stores under U.S. jurisdiction from continuing to carry the app or facilitating updates of it for existing users. Late in the day, however, a federal district court in Washington announced that it was granting TikTok’s motion for a preliminary injunction against implementation of the ban.
The court initially did not release its underlying opinion explaining the ruling, out of concern that it contained information that might need to be sealed. But the opinion is out now, and you can read it here. Meanwhile, here’s my summary of what you need to know about it:
1. Does this concern the IEEPA sanctions, the CFIUS divestment order, or both?
This concerns only the International Emergency Economic Powers Act (IEEPA) sanctions, not the separate Committee on Foreign Investment in the United States (CFIUS) order compelling ByteDance to divest itself of TikTok by mid-November. Indeed, Judge Carl Nichol’s preliminary injunction does not even extend to all of the IEEPA sanctions, most of which don’t take effect until the expiration of the CFIUS deadline in any event. It solely concerns the one IEEPA sanction that was to take effect Sunday at midnight: the aforementioned directive to providers not to continue to make TikTok’s app available or to facilitate updates of the app for existing users.
This is a critical point. Whether this ruling withstands further review or not, ByteDance still by mid-November must divest itself of TikTok under the CFIUS order.
2. Was this a “final” ruling on the merits, resolving these issues once and for all?
No, it was a ruling on a pretrial motion for a preliminary injunction. Such motions do require courts to engage on the merits, however, because “likelihood of success on the merits” is a central issue in the analysis. And where courts find that the movant is indeed likely to succeed on the merits, as happened here, that is generally thought to be a strong predictor of where that particular judge ultimately will come down on the issue.
All that said, the Justice Department will likely appeal this ruling (with or without an attempt to get the U.S. Court of Appeals for the District of Columbia Circuit to stay the order in the meantime, which would enable the app-store sanction to take effect after all). In short, there’s no reason to think Nichols will change his mind on this issue, but things will be up for grabs when the proceedings move to the D.C. Circuit, which probably will occur soon. Consider this ruling a dress rehearsal, then, albeit one with real consequences for the moment.
3. On what basis did Judge Nichols conclude that TikTok was likely to succeed on the merits?
TikTok raised a variety of arguments, but Nichols focused exclusively on two of them: the argument that this particular sanction cannot be squared with a pair of limitations embedded in the IEEPA itself, one protecting “informational materials” and the other protecting “personal communications” that do not involve a thing of value. Let’s look first at the text of those exemptions, and then let’s consider the court’s analysis.
While the statute does delegate to the president sweeping authority to sanction foreign entities, it contains a few express limitations (that is, situations in which Congress elected to retain authority for itself to exercise or not). They are found in 50 U.S.C. 1702(b), which in relevant part states:
(b)Exceptions to grant of authority
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Read the original article: TikTok Wins Round One: An Overview of Judge Nichols’s Preliminary Injunction Ruling