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Tiktok's struggle: suing the U.S. government for rights and interests

via:CnBeta     time:2020/8/24 3:13:12     readed:285

In August 23rd, tiktok's overseas parent TikTok byte beating statement: it will formally sue Trump, the first administrative order issued by the US president in August 6th, on the local time in August 24th, the United States on Monday.Meanwhile, tiktok is preparing for the worst to ensure that its employees continue to be paid even if the app is shut down in the US. That is, while preparing to sue the US government, byte skipping is also actively preparing the "shutdown plan".

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"Over the past year, we have sought to communicate with the US government and provide solutions to the concerns raised by them with a sincere attitude," byte beat told the first financial reporter. However, the U.S. government ignored the facts, did not follow due process of law, and even tried to forcibly intervene in the negotiation of commercial companies. To ensure that the rule of law is not abandoned and that companies and users are treated fairly, we will defend our rights and interests through litigation. "

A legal source from the US law firm told the first finance reporter that in this lawsuit, the most important thing is what kind of evidence Chinese enterprises produce and whether they can support the legal argument.

According to the president's executive order issued by trump on August 6, any transaction between any person or enterprise subject to the jurisdiction of the United States and the parent company of tiktok will be prohibited for 45 days. The full scope of the ban is unclear, and the U.S. Secretary of Commerce will have the power to determine the scope of the transaction.

Jiang Zhaokang, a lawyer for international trade and supply chain management and a partner of GSC Potomac, told first finance and Economics: "now we have to wait for the specific measures of the U.S. Department of Commerce to implement the presidential decree."

Wang Xinrui, senior partner of Beijing Anli law firm and head of TMT business department, told reporters from China first finance and economics that byte skipping has little chance of suing the U.S. government, but the litigation procedure is meaningful and the issue can be further clarified.

The last act of protest

In August, trump issued administrative orders twice in a row to block byte skipping on the grounds of "national security". In addition to the trading ban on August 6, trump issued an executive order on August 14, requiring byte jitter to sell or spin off its tiktok business in the United States within 90 days. Trump also authorized the attorney general, the attorney general, to take any necessary measures to implement the order.

Although China's Internet giant has n' t disclosed where to sue the U.S. government, Osten International Law firm (Alston) said

According to the above lawyers, basically, when a company initiates a lawsuit in the United States, the court will file a case, but filing a case does not mean that the plaintiff will win the lawsuit, and the court attaches great importance to legal argument. "For tiktok, suing the U.S. government is the last protest, because there is no other channel to vent. To file a lawsuit is to tell the public his story."

She also stressed to the first financial reporter that Chinese enterprises should have sufficient arguments to sue the U.S. government, because government actions may not be subject to judicial review in some cases. At the same time, the legal principle of due process should always be considered in the formulation of laws and regulations, decisions and orders of the United States. If the government deprives any individual or enterprise of the existing property rights, it needs to go through due process, so the argument of "due process" will become more important.

Tiktok plans to refute Trump's International Emergency Economic Powers Act (IEEPA) in the lawsuit, arguing that the executive order deprives Chinese companies of their "due process" rights.

It is worth noting that the international emergency economic power act empowers the president to regulate business after declaring a state of emergency in order to deal with any abnormal situation or "special threat" in foreign countries.

Trump used the law to threaten US companies in China to leave China from 2018 to 2019.

In the past, the United States has not declared a state of emergency under the international emergency economic power act because of trade disputes. In addition, the international emergency economic power act is subject to the national emergency law of the United States, and the declared state of emergency must be updated annually to maintain its effectiveness.

The significance of litigation

Wang Xinrui told first finance and economics that the main legal basis of Trump's first administrative order is IEEPA and the national emergency law; the second administrative order is based on the amendment to the national defense production law of 1950. The two sanctions are different: the former restricts the byte skipping of tiktok's parent company, while the latter forces tiktok to divest its business and assets in the United States.

As a way of appeal, Wang Xinrui said that although Congress has the right to terminate the state of emergency by joint resolution or enact laws to limit the president's power in IEEPA, no member of Congress has proposed a resolution to terminate the state of emergency so far.

Feng Yueping, founder partner of Beijing capital law firm, analyzed to the first financial reporter that Trump's first administrative order was based on the administrative order "ensuring the security of information and communication technology and service supply chain" signed on May 15, 2019, declaring a state of national emergency and prohibiting the trading and use of foreign information technology that may pose a special threat to the national security, foreign policy and economy of the United States And services. However, trump did not provide the basis for the unusual and serious threat of byte skipping to the United States, which largely reflects the violation of the program.

Secondly, Feng Yueping said that the IEEPA limits the president's power to sign executive orders, that is, the president cannot directly or indirectly restrict or prohibit personal exchanges that do not involve value transfer. If the executive order will hinder the use of tiktok as a communication tool, it will break through the scope of power given to the president by IEEPA.

In addition, the second administrative order is aimed at byte jump's acquisition of the United States in 2017 Musical.ly As a result, byte skipping, its subsidiaries, affiliated companies and Chinese shareholders should divest their business in the United States in accordance with the requirements of CFIUS.

Feng Yueping said that CFIUS is an inter departmental Committee at the federal level, which has the right to review all foreign investment in the United States and determine whether it damages the national security of the United States. However, the Cfius investigation results are not affected by the judicial evaluation, so it is difficult to overturn it through the court.

Feng Yueping said that although the byte beat lawsuit is not likely to win, but from the emotional point of view, through the actual resistance action, it can give Chinese entrepreneurs, investors and domestic people market confidence.

Wang Xinrui believes that through prosecution, byte skipping can play a role in declaring confidence to the outside world. "If you accept an unjust administrative order in silence, it is tantamount to admitting to the outside world that you are in the wrong. Even if you can't win in the end, forcing the other party to explain the matter clearly and make the rules clearer is also good for the enterprise. ".

Prepare for the worst

TikTok general manager of the United States, Vanessa Papas (Vanessa Pappas), in an interview on August 20, strongly opposed CFIUS conclusion. She said she was disappointed by the CFIUS's ruling that there was no evidence to support TikTok threat to U.S. national security.

Byte skipping said that as part of the shutdown plan, byte skipping is actively contacting overseas banks and investment institutions to seek the possibility of paying wages and protecting other legitimate rights and interests of American employees when the presidential decree comes into effect.

For the byte skipping in the passive position at present, Wang Xinrui suggests that what the company can do is to explain to users the efforts in privacy protection and data security, refute false rumors and try to win the approval of foreign ordinary users. Secondly, the administrative order directly affects byte skipping, so the company must take legal actions pertinence.

TikTok has more than 100 million users, more than 1500 employees and thousands of partners in the United States. Aside from official litigation, byte-beat American employees are also suing Trump on their own. Mike Godwin (Mike Godwin), an Internet policy lawyer who filed a lawsuit on behalf of employees, said Trump's ban was administrative ultra vires and would damage the constitutional rights of employees TikTok American companies.

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