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TikTok employee seeks preliminary injunction against Trump’s big ban
By Chris Cooke | Published on Monday 7 September 2020
While TikTok owner Bytedance is busy fighting the executive orders issued against it by US President Donald Trump, concurrent legal action by a TikTok employee might result in some judicial scrutiny of those orders sooner. TikTok Technical Program Manager Patrick Ryan has filed a motion seeking a preliminary injunction that would restrict the impact of Trump’s big TikTok ban.
Trump has now issued two executive orders that target China-based Bytedance and its super popular video-sharing app. The first bans any American from transacting with the Chinese company from later this month. The second orders Bytedance to sell off all its US assets by mid-November.
Officially those orders are based on concerns that the Chinese government has access to the global TikTok audience and user-data, and that that creates a security risk. But some reckon the whole thing has more to do with Trump wanting to seem tough on China in the run-up to this year’s presidential elections.
Bytedance denies that the Chinese authorities have access to data relating to TikTok users all over the world. It also says that the executive orders are an overreach of America’s International Emergency Economic Powers Act and, for that matter, entirely unconstitutional.
Ryan also initially filed his legal action against the Trump executive orders last month. His action specifically focuses on whether or not TikTok US employees can be paid once the Bytedance ban goes into effect.
Trump’s first executive order is written in sufficiently ambiguous terms that it could mean Americans working for TikTok cannot be paid from later this month. And while the US Department Of Commerce may not read it that way, it isn’t obliged to confirm whether the executive order will affect salaries until the ban is actually in place.
A new legal filing last week seeking a preliminary injunction on the matter states: “The more than 1500 TikTok employees working in the US – and their families – need to know whether they will be paid in the coming weeks. These employees include US citizens that have families to feed, rents and mortgages to pay, and health care to manage”.
“In addition”, it goes on, “many TikTok employees working in the United States are here on H-1B visas, which require their employers to sponsor their visa status. These workers, lawfully present in the United States, must leave the US immediately – or risk deportation – if their employment status is constructively terminated by the effect of the executive order”.
The injunction Ryan now seeks would specifically relate to employee wages. Last week’s legal filing concludes: “Plaintiff respectfully requests that this court grant his motion to preliminarily enjoin the Department Of Commerce from enforcing the executive order to the extent such order prohibits TikTok Inc from paying wages and salaries to its US employees”.
However, Ryan’s legal papers hit out at Trump’s big TikTok ban in more general ways too, presenting the executive orders as a petty response by a very petty president to the way his critics and opponents have used the video-sharing app. The legal filing also notes Trump’s “I’m tough on China” narrative in his electioneering.
“TikTok is an appealing political target for President Trump because he believes that the popular social media platform caused his campaign to embarrass itself over the expected attendance at his political rally in Tulsa, Oklahoma on 20 Jun 2020”, the legal filing says, “and because many TikTok users use the platform to satirise the president”.
“As a result”, it goes on, “the US employees of TikTok and their families have been made pawns in a political spitting match between China and President Trump, who has decided to make ‘tough on China’ a central theme of his re-election campaign”.
Not only that, but “TikTok employees in the United States – US persons and citizens – have been defamed and disgraced by the president’s executive order”.
That’s because it “accuses TikTok, and its US employees, of – among other things – working for the Chinese Communist Party, building dossiers on US citizens and defence contractors for the purpose of blackmail and corporate espionage, censorship, and even spreading conspiracy theories about the origins of the coronavirus”.
“The president made these accusations without any evidence that any such actions or activities have ever occurred”, it then states.
Legally speaking, Ryan’s arguments pretty much mirror those of his employer, to the effect that Trump’s executive orders are illegal and unconstitutional.
It remains to be seen how the judge responds to Ryan’s request for a preliminary injunction. Even if said judge rules in Ryan’s favour, the ruling could focus exclusively on the impact of Trump’s big ban on TikTok employees and nothing else. Or, alternatively, it could be the first judicial insight we get on the president’s wider assault against Bytedance and its TikTok app. We will see.
Of course, concurrent to all this, Bytedance is still in talks with various bidders regarding a sale of the US TikTok business which may or may not placate Trump and render the executive orders and the bans contained within them redundant.
