- The Washington Times - Wednesday, November 4, 2020

A federal judge grilled lawyers for TikTok and its China-based owner, ByteDance, on Wednesday about whether the popular social media app would accept any restrictions on how it maintains American users’ data.

U.S. District Judge Carl Nichols, who was appointed by President Trump, questioned lawyers challenging the Trump administration‘s intended block of TikTok about whether federal law allows the administration to prevent U.S. data from residing outside the country.

“Could they directly regulate, I’ll put it this way, the location and sharing of data to prohibit the transmission of U.S. TikTok user data outside the United States consistent with the prohibition on indirect regulation of personal communications or export or import of informational materials?” Judge Nichols asked at a hearing in the U.S. District Court for the District of Columbia.

“Your honor, it’s very difficult to answer hypotheticals. I’ll confess I’m not an expert on the app and how it functions,” answered John Edward Hall, a lawyer for TikTok and ByteDance from the law firm Covington & Burling. “I would say that regulations that are genuinely designed to protect data security that incidentally reduce functionality are probably OK. … The devil is in the details.”

Mr. Hall said he did not think Judge Nichols needed to engage in a “line-drawing exercise” of whether any regulations were necessary, however, because the Trump administration has designed its regulations to inappropriately stop TikTok and intends to “destroy the app.”

TikTok has about 100 million monthly users in the U.S.

Alexander Adelman Berengaut, another Covington & Burling lawyer for TikTok and ByteDance, told the judge he did not think the Trump administration bothered to consider the steps the lawyer argued TikTok has taken to protect users’ data.

“We believe that the justification for the prohibitions completely failed to take account of the data security protections that TikTok has built, precisely to address this issue,” Mr. Berengaut said. “And it’s not an issue that’s unique to TikTok or ByteDance. It’s an industry-wide issue for managing data security protections for sensitive user data and for source code.”

Justice Department lawyer Daniel Stephen Garrett Schwei disputed Mr. Berengaut’s claims and said the federal government also has concerns about how the app is moderating Americans’ speech online.

“The objective is protecting the bulk collection of U.S. user data and making that data vulnerable to the People’s Republic of China and I think characterizing the discussion as concerned about Chinese propaganda is a little inaccurate because the concern is not about trying to ban or restrict access to any actual videos or content,” Mr. Schwei said.

“The concern expressed in the decision memorandum is that ByteDance and the PRC are themselves modifying the type of videos and content that users, including U.S. users, have access to. And so it’s not a situation where the U.S. government is trying to limit the free flow of information, the concern expressed by the U.S. government is that that is exactly what China is doing.”

The Trump administration‘s battle with TikTok hit the courts in September, when Judge Nichols ordered a temporary halt on the Trump administration‘s decision to prevent TikTok from being distributed via app stores run by Apple and Google.

The judge’s September order did not halt all of the Commerce Department’s actions against TikTok, and Judge Nichols had declined to halt additional restrictions set to begin next week.

Last week, U.S. District Judge Wendy Beetlestone, who was appointed by President Obama, separately issued a preliminary injunction against the Trump administration‘s restrictions on TikTok set to take effect next week. Judge Beetlestone’s order in the U.S. District Court for the Eastern District of Pennsylvania came in response to a legal challenge brought by TikTok users.

Both legal challenges are running alongside separate action by the Committee on Foreign Investment in the United States, which is led by Treasury Secretary Steven T. Mnuchin.

CFIUS is a government entity that reviews commercial transactions for potential national security problems. CFIUS was formed in 1975 but reinvigorated in the Trump era following a broadening of its authority through the Foreign Investment Risk Review Modernization Act of 2018.

Judge Nichols asked the lawyers to keep him updated on developments from the CFIUS proceedings and said he may ask the lawyers to provide short supplemental briefs before Friday about how he should consider Judge Beetlestone’s order in making his own ruling.

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