• by Wendy Davis  @wendyndavis, October 17, 2020

Citing the risk of Chinese espionage, the Trump administration is seeking to lift an injunction that prevents the government from banning downloads of the social app TikTok.

The judge who issued the injunction “second-guessed the President’s assessment of national security threats posed by the Chinese government’s surveillance, espionage, and data-collection efforts targeting Americans,” the Department of Justice writes in papers filed late Friday with the D.C. Circuit Court of Appeals.

The government's appeal comes two weeks after U.S. District Court Judge Carl Nichols in Washington, D.C -- an appointee of President Trump -- prohibited the Commerce Department from moving forward with plans to ban new downloads of the app.

The Commerce Department issued its directive in response to an executive order by Trump, who said TikTok posed a security risk and mandated a ban on all U.S. transactions with the company as of September 20. That deadline was later extended until September 27.

When Trump issued the order, he invoked the International Emergency Economic Powers Act, which authorizes the president to declare a national emergency and restrict some -- but not all -- transactions with foreign countries.

That law specifically does not authorize the president to regulate the importation or exportation of “personal communications” that don't involve a transfer of anything of value. It also doesn't authorize regulation of “informational material,” including photos and news feeds.

TikTok challenged the ban in court for several reasons, including that the company's service wasn't subject to a ban because it enables personal communications and the transfer of informational material.

Nichols agreed with TikTok on that point, writing that the company had shown it was likely to prevail with the argument that its service fell within the exceptions to the powers outlined in the International Emergency Economic Powers Act.

The Justice Department is now arguing to the D.C. Circuit that Nichols was wrong for several reasons, including that he didn't adequately consider national security interests.

The government says the ban on downloads will “minimize the national security threat posed by the company’s aggressive data-collection practices and the Chinese government’s intelligence practices.”

The Justice Department also argues that Nichols incorrectly found that users' communications on TikTok lack economic value.

“Users’ personal communications on TikTok are extraordinarily valuable to the company: TikTok predicates its entire business model on those communications having value,” the government writes.

“TikTok has modeled its business on monetizing information that the company harvests from users’ communications, tied to users’ activity on the app,” the Justice Department adds. “The company uses this vast volume of information in the platform’s machine-learning capabilities to model each user’s preferences and provide a tailored advertising experience for each user, generating substantial revenue.”

TikTok is expected to file a response by November 6.

Late last month, Oracle and Walmart agreed to purchase TikTok from ByteDance, the Chinese company that owns the app, but whether that deal will be finalized remains unclear.