The longer the lawsuit lasts, the more time tiktok will have. Today, tiktok, an overseas short video software company owned by bytecomb, announced on its official website that it has formally filed a lawsuit, bringing the US government to court. On August 6, trump signed a presidential decree, announcing that after 45 days, any person or organization regulated by U.S. law is prohibited from conducting any transaction with tiktok and byte skipping.TikTok issued a statement today alleging that a lawsuit was filed against the presidential decree, which violated the Fifth Amendment to the United States Constitution and lacked due process of law.
Constitution of the United StatesThe Fifth Amendment states that no one shall be deprived of life, liberty or property without due process of law.
What does the indictment say
TikTok what are the points in the indictment?
1) The injunction is ultra vires and lacks due process of law
In the indictment, tiktok accused trump of abusing the International Emergency Economic Rights Act (IEEPA) in the presidential decree signed by trump on August 6, The existence of ultra vires deprives TikTok of the opportunity to defend themselves and seek solutions before and after the findings CFIUS( the United States Foreign Investment Commission), violates the Fifth Amendment and lacks due process.
"This presidential decree is ultra vires because it is not based on a bona fide national security threat," tiktok said
2) Tiktok is not a telecommunications technology company that provides "critical infrastructure and critical emergency services."
The presidential decree, signed by trump on August 6, cites last year's executive order 13873 (to be detailed later), defining tiktok as a national security threat.
However, tiktok pointed out in the summary of the indictment that the targets of executive order 13873 were telecommunication technology companies providing "critical infrastructure and important emergency services"——Tiktok is not such a company and does not have the corresponding software and hardware technology and service capabilities.
3) Tiktok has done everything he candivisionUnited States data
Tiktok's indictment points out that in order to solve the problem and reassure the US government, tiktok has exhausted all means to cooperate with the investigation and has taken a lot of measures to ensure compliance:
"The executive order tried to ban tiktok on the speculative grounds that tiktok could be manipulated by the Chinese government. But as the U.S. government fully understands,The plaintiff took special measures to protect the privacy and security of tiktok U.S. user data, including storing data outside China (the United States and Singapore, and establishing a data firewall inside to ensure that the data of TikTok US users and the data of other products with byte skipping are separated. "
And, in the United States, the byte beat acquisition Musical.ly In the Cfius review, tiktok has provided a large number of documents and made a lot of commitments to the US government, which is fully enough to address any concerns of the US government on privacy and national security.
"Although we disagree with these concerns, we have made a lot of efforts on a comprehensive and honest basis."
4) CFIUS refuses to communicate
"CFIUS has never provided any clear explanation as to why tiktok's security measures failed to address national security concerns," tiktok's indictment read. Moreover, CFIUS terminated formal communication with the plaintiff before the end of the initial statutory review period. "
In order to address any possible concerns of the U.S. government and to ensure that U.S. users can continue to use the product, "the plaintiff took an extraordinary move and proposed to restructure tiktok's U.S. business."
Tiktok accuses the US government“CFIUS records show that the agency repeatedly refused to communicate with byte skipping and its lawyers on addressing national security concerns."
5）CFIUSThe survey results are full of flaws
At 23:55 on June 30, 2020, the last five minutes of the last day of the legally permitted CFIUS investigation period, CFIUS finally released its final findings, identified tiktok as a national security threat, and pointed out that "no measures can be found to link this threat."
Tiktok points out that,The investigation results mainly refer to outdated news reports, and ignore a large number of documents submitted and various measures taken by the plaintiff in the process of cooperating with the investigation.
"This survey is full of flaws."
6)" We have no choice
"Clearly, we prefer a constructive dialogue to litigation," tiktok said in a statement announcing the prosecution, after giving several reasons for the prosecution
"But when the presidential decree threatened to shut down our U.S. business and eliminate 10000 U.S. jobs, it irrevocably hurt millions of Americans who use our products for entertainment, relationships, and livelihoods, especially during the outbreak——We really have no choice."
Had to sue
On August 6, U.S. time, President trump signed two presidential decrees, one of which requires that any person or organization regulated by U.S. law be prohibited from carrying out any activities between tiktok and byte skipping after 45 days of signingtransaction。
This is exactly what this presidential decree is about.
The presidential decree cites another order 13873 signed by trump last year, which defines "transaction" as any information and communication technology serviceThe act of acquiring, importing, transferring, installing, trading or using.
This is likely to mean that tiktok is likely to be completely banned in the United States 45 days after August 6.
The byte bounce in the statement for the August 6 "block order" indicates that:
”We are very shocked that the latest executive order issued by the president of the United States does not follow due process of law. Over the past year, we have been seeking to communicate with the U.S. government and provide constructive solutions to their concerns. However, what we are facing is that the United States government ignores the facts, decides the terms of the agreement without following due process of law, and even tries to interfere in the negotiation between private enterprises. "
”We have made it clear that we are willing to negotiate solutions with the U.S. government so that we can continue to serve our users, creators, business partners, employees, and American society. However, in this process, the U.S. government has not followed due process of law and has not acted in accordance with the law. The "report" cited in the executive order is of unknown or unconfirmed origin, and there is no substantial basis for the concern that the application "may" be used for false publicity activities. "
"If the U.S. government can't give us justice, we'll go to the U.S. courts."
The byte beat does have no choice. Failure to prosecute within 45 days means Trump's previous ban will automatically be enforced.
One of the purposes of initiating a lawsuit within the 45 day time limit is that, because the order is directly related to the facts of the case, in principle, the order should be temporarily frozen before the judge makes a judgment.This step can be achieved by submitting a motion by tiktok. Of course, the defendant can also object to the motion, and it depends on the judge's judgment and opinion.
Byte skipping has indicated before, hoping to get fair treatment through the court. It is also its only chance to fight for fair treatment.
As long as you can enter the legal process, the longer you delay, the more time you can get for tiktok.
Complaining about CFIUS
As a Chinese company, byte hop is still immature in the face of the U.S. government despite its strong presence in the US Internet market.
On acquisition Musical.ly The byte skipping bypasses CFIUS and does not submit for review.
According to the information of the US science and technology media: "if the transaction party has not voluntarily reported the transaction to CFIUS and passed its review process, the president of the United States can even cancel the transaction after the transaction is completed. This is the political justification of Trump's use of CFIUS to make the byte jump difficult. "
In fact, even if CFIUS has approved and completed a foreign acquisition, it can still be rejected many years later. This is the case with the acquisition of Grindr by Kunlun.
CFIUS is a high-level regulatory agency coordinated by the U.S. Treasury Department and other departments. It has the final veto power over all foreign-funded mergers, acquisitions and investments.
CFIUS's working mode is rather mysterious. The key concepts of review procedures and standards are vague, the review procedures are not transparent, and the standards are uncertain. However, CFIUS has a very wide jurisdiction and a high degree of discretion Musical.ly It's all right.
The internal source of byte skipping once told pingwest that CFIUS was targeting at Musical.ly There is a serious lack of reasonable disclosure in the process of acquisition investigation.
Why does CFIUS require byte hopping to sell tiktok business? Why does CFIUS define the application of this server and data located in the United States and Singapore, the company and its products that have been maintaining user data security, platform neutrality and transparency as "national security threats"——CFIUS does not actively provide the basis for making a conclusion, nor does it respond to investors' requests for evidence. It is basically a black box.
The legal basis of CFIUS is the defense production act of the United States and the modernization of Foreign Investment Risk Assessment Act. Among them, the latter extends the scope of CFIUS to foreign investment involving "national security".
The core issue is that CFIUS has never defined the "national security" risk of foreign investment clearly and uniformly.
CFIUS is led and coordinated by the U.S. Department of finance, with the participation of the Department of justice, the Department of homeland security, and the State Department.
What TikTok today's prosecution of the U.S. government is essentially not stripping TikTok, it wants to challenge, but the possibility of TikTok being completely blocked.
In his second recent internal letter, Zhang Yiming mentioned a key detail: what the United States really wants to see is not to force byte skipping to sell tiktok, but to completely ban tiktok.
If tiktok can continue to exist in the United States, selling is only a temporary decent concession, not a failure.
Only tiktok is completely blocked is the result that byte skipping absolutely does not want to happen. That's why it has tried every means to resist, including trying to mediate at the negotiating table for the sale of tiktok, and, of course, taking legal measures to make everything public (in the United States, court documents are completely open).
The purpose of resistance is not to burn everything, but to prevent the party who started the war from realizing its original purpose.
Former title: TikTok formally sue the u.s. government for unconstitutional injunction "we really have no choice"