The day has finally arrived. During a 90-minute emergency hearing Sunday morning, lawyers from the DoJ faced off with the legal team from ByteDance in arguments before Judge Carl Nichols of the US District Court for the District of Columbia, who has said he release his decision by late Sunday.
That decision comes in response to TikTok’s latest legal action – a request for an emergency injunction – to try and circumvent a series of executive orders signed by President Trump that seek to completely shut down the app by No. 12. If allowed to stand, TikTok would be booted from American app stores, as of midnight, with more restrictions set to come into effect after the election.
The proceedings have been kept mostly under wraps, with a select group of reporters, mostly from various wire services, allowed to report on the hearing. About an hour ago, a redacted brief filed by the government outlining its argument was finally released, after Bloomberg published a preview earlier today which revealed that the DoJ’s argument centered on an earlier ruling from a judge in PA.
So far, this is the biggest hint that we’ve gotten on the judge’s decision, hinting that whether TikTok has been accorded “due process” might be a key issue in the judge’s thinking.
Judge says when he issues his decision, he’ll publicly grant or deny an injunction. But the contents of the *opinion* will be sealed til TikTok and the US government get back to him on what needs to be redacted.
— Jo Ling Kent (@jolingkent) September 27, 2020
And while a decision might not arrive until late tonight, since the judge is requiring both sides to respond to his opinion before it’s unsealed.
Too early to tell how the judge may decide, but he appeared to tip his hand slightly when pressing DOJ to defend why the restrictions gave TikTok enough due process. It seems, he said, that: pic.twitter.com/7y0wjmwrPb
— Brian Fung (@b_fung) September 27, 2020
Axios’ editor Dan Primack believes the odds are that TikTok’s request will be granted, given the precedent from the WeChat ruling earlier this month.
TikTok ruling by EOD.
Odds are company gets TRO request approved. Becuz: Judge skeptical of gov “status quo” argument on Thurs, WeChat quasi-precedent, EO text and process was super sloppy & can grant TRO w/out disputing nat sec argument.
But no sure bets in this bizarre thing.
— Dan Primack (@danprimack) September 27, 2020
Here’s a redacted briefing outlining the rest of the government’s argument, the most thorough explanation yet, which was apparently filed Friday night, but only released Sunday afternoon. In its ruling, the DoJ accuses TikTok of being a “mouthpiece of the Communist Party” and alleges that the company has an “informal” relationship with the state security apparatus due to Chinese laws compelling cooperation by domestic companies.
Beijing-controlled papers published a flurry of editorials opposing the deal last week. ByteDance’s venture investors, including General Atlantic Partners and Sequoia Capital, created the structure that makes it look like TikTok will largely be owned by US investors, though this fact has apparently been disputed as both Beijing and Washington want the other to come away with majority control – one of the key sticking points in the talks, according to press reports. According to the structure, Oracle will manage TikTok in its cloud, a highly lucrative business, while ByteDance would retain control of TikTok’s content-recommendation algorithm, seen as its “secret sauce”. An IPO would then be planned for some time next year.