Social media and China: two beloved scapegoats of the current administration. But the president might be foiled in his latest attempts to bully a tech company—in this case, TikTok—into banishment and use executive power to put U.S. TikTok employees out of jobs. TikTok is fighting, and so is famed constitutional lawyer Mike Godwin.
On Monday, the same day TikTok announced that it’s suing the Trump administration over attempts to ban the popular video app, Godwin also filed a lawsuit challenging President Donald Trump’s recent executive order on TikTok and the messaging app WeChat.
Godwin—perhaps best known as the creator of Godwin’s Law, the early internet axiom that “as an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1″—and the Blackstone Law Group are representing TikTok employee Patrick S. Ryan. Their suit—filed against Trump and Secretary of Commerce Wilbur Ross in the U.S. District Court for the Northern District of California—was brought “to prevent the implementation of the President’s August 6, 2020 Executive Order purporting to ban all ‘transactions’ with TikTok, to the extent that order would prevent TikTok from paying its U.S. employees their wages and salaries when the order takes effect on September 21,” the complaint states.
Trump’s “sweepingly broad” order nixes “any transaction” between a business or person subject to U.S. laws and TikTok parent company ByteDance Ltd., notes the suit. That includes transactions involving its U.S. subsidiary, TikTok Inc., which was legally incorporated here and employs around 1,500 people in the U.S.
Trump’s stated rationale for the order was that TikTok is owned by a Chinese company and therefore is supposedly beholden to the demands of the Chinese Communist Party. But while ByteDance started in China, it’s now based out of the Cayman Islands. And subsidiary TikTok Inc.’s headquarters are in Culver City, California, with servers in Virginia.
“TikTok is neither owned, operated, nor controlled by China or the Chinese government. Indeed, TikTok does not even operate in China,” the lawsuit states.
“A lot of the things that people were saying on what to worry about with TikTok was crazy,” Godwin tells Reason.
“There’s nothing unique about TikTok and there are plenty of other apps that gather” the same sort of user information, he says, challenging the idea the data TikTok users give it is particularly threatening to their privacy. “What’s the blackmail model for TikTok? Your dance moves? No matter how bad they are, they’re not that bad!”
When he would ask TikTok critics about what the actual “threat model” is, many “would look at me like ‘isn’t it obvious?'” says Godwin. “They would get upset—’why am I even raising these questions about whether the Chinese are somehow using TikTok in a bad way? Of course they are!'”
“So that was troubling,” Godwin adds. “I know what moral panics look like; they look kind of like this.”
Now, U.S. workers of TikTok are now caught up in the crosshairs.
ByteDance may be able to sell TikTok Inc.—both Microsoft and Oracle have been interested. But that offers no protection or solace for the company’s workers here, Godwin points out. “If TikTok gets sold to Microsoft or Oracle, that’s no guarantee now that [current employees are] going to have a job” or that they want to work for these companies.
“The 1,500 TikTok employees working in the U.S.—as well as their families—need to know whether they will be paid next month,” states the lawsuit. “These employees include U.S. citizens that have families to feed, rents and mortgages to pay, and health care to manage. In addition, many TikTok employees working in the United States are here on H1B Visas, which require that their employer sponsor their visa status. These workers, lawfully present in the United States and acting in reliance on their employment relationship with TikTok, as well as in reliance on the U.S. government’s H1B visa process, face having to leave the U.S . immediately—or risk deportation—if their employment status is constructively terminated by the effect of the Executive Order.”
“We realized the employees had a sort of analytically distinct set of complaints they could make against the government,” Godwin says. In this case, employees have a situation where “the company contracted with you to make you an employee, but now the government is reaching in to destroy that contract.”
“Nothing illegal has happened,” says Godwin. “What you have are these very speculative harms, there’s no actual evidence that anybody’s using TikTok data in any way that would trouble a parent, much less, you know, the U.S. government.”
“You just get this sense that [Trump is] cruising around for something that he could do to show that he can punish a social media platform,” he adds.
Trump’s executive order contains a lot of speculation about how TikTok could be dangerous. Yet it relies entirely on the idea that apps with any ties to China could—in some yet to be determined way—become a national security threat.
It’s “like the notion of pre-crime in [the film] Minority Report,” says Godwin.
Yet unlike the president’s earlier order concerning Twitter and Section 230, the order against TikTok and WeChat actually has teeth, Godwin notes. In fact, “it’s all teeth.” And yet “you can’t actually look at it and determine how you could avoid being punished by it.”
In terms of the suit’s success, the president’s invocation of “national security” is a hurdle.
“A number of national security law professors and lawyers are pretty certain that no foreign-owned company can really resist the superpowers the president has … regarding foreign investment and divestments and so on. But I think they’re wrong!” says Godwin. “They’ve gotten used to thinking of a ‘national security’ claim” by the president “as being like a royal flush—the highest possible hand that no other hand can beat—but I think it’s like a full house. It’s a really good hand, but there are some other hands that can beat a full house.”
The hand they’re playing is “individual rights,” Godwin says. And he thinks that just might prevail, if they can “get this order in front of a judge, and create a narrative and a throughline that allows a court to realize how bad it is.”
You can read their full complaint here.
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