The U.S. Court of Appeals for the District of Columbia Circuit on Monday showed skepticism toward the Trump administration’s attempt to ban new downloads of the Chinese app TikTok.
The app, which President Trump this summer declared a threat to national security, is one of the most popular video platforms in the world, but in the past year, it has become entangled with calls for its ban in the U.S. That ban, which various arms of the Trump administration have attempted to impose, has in large part failed as numerous judges ruled that regulating the app exceeds the government’s powers.
In the December injunction against the government, U.S. District Court Judge Carl Nichols found that an attempt by the Commerce Department to ban the app was “arbitrary and capricious.” The government appealed that ruling, and in hearings Monday, the Justice Department argued before the D.C. Circuit that the government should be allowed to ban the app.
Thomas Byron, a senior appellate counsel at the Justice Department, explained that the federal government was seeking a “de facto ban” on the app by preventing people in the U.S. from using the app. TikTok users would still be able to see videos in their web browsers under the ban. Under these terms, Byron said, the actual videos shared on TikTok would not be banned, only the ability for people to create accounts, which the government argues is how the Chinese regime collects user information.
Judge Patricia Millett said this argument still seemed to cut people off from engaging in free speech on TikTok.
“By forbidding new users from joining, this prohibition bans a lot of Americans from joining the communications and exchanges that I think more than a quarter of the American population is already engaged in,” she said. “For all those people who wish to join in those communications — they’re banned. How are they not banned?”
Millett also signaled skepticism of the Justice Department’s claims that the proposed ban would not amount to “indirect regulation,” which is prohibited by federal law. Referencing Byron’s arguments, she said that the government seems to rely on “a fairly narrow definition of indirect regulation.”
Judge Judith Rogers added that the proposed ban seemed “to fly in the face” of past congressional definitions of indirect regulation.
Trump’s chances for winning the battle against TikTok have become increasingly slim as his presidential term winds down. The Commerce Department last week announced that it will not enforce an order prohibiting U.S. companies from hosting the app.
Trump in September attempted to broker a deal by which the app, which is owned by the Chinese company ByteDance, would sell a share of its holdings to Walmart and Oracle, but the deadline for the arrangement passed in early December.
