TIKTOK INC. et al v. TRUMP et al

Filing 15

MOTION for Preliminary Injunction MOTION to Expedite by BYTEDANCE LTD., TIKTOK INC. (Attachments: #1 Memorandum in Support, #2 Declaration, #3 Declaration, #4 Declaration, #5 Declaration, #6 Exhibit, #7 Exhibit, #8 Exhibit, #9 Exhibit, #10 Exhibit, #11 Exhibit, #12 Exhibit, #13 Exhibit, #14 Exhibit, #15 Exhibit, #16 Exhibit, #17 Exhibit, #18 Exhibit, #19 Exhibit, #20 Exhibit, #21 Exhibit, #22 Exhibit, #23 Exhibit, #24 Exhibit, #25 Exhibit, #26 Exhibit, #27 Exhibit, #28 Exhibit, #29 Exhibit, #30 Exhibit, #31 Exhibit, #32 Exhibit, #33 Exhibit, #34 Exhibit, #35 Exhibit, #36 Exhibit, #37 Exhibit, #38 Exhibit, #39 Exhibit, #40 Exhibit, #41 Exhibit, #42 Exhibit, #43 Text of Proposed Order)(Hall, John). Added MOTION to Expedite on 9/24/2020 (zeg).

Case 1:20-cv-02658-CJN Document 15-24 Filed 09/23/20 Page 1 of 8

EXHIBIT 18

Case 1:20-cv-02658-CJN Document 15-24 Filed 09/23/20 Page 2 of 8
UNITED STATES DEPARTMENT OF COMMERCE
Deputy Assistant Secretary for Intelligence and Security
Office of Intelligence and Security
Washington, D.C. 20230

VIA ELECTRONIC MAIL
September 3, 2020
John E. Hall
Covington & Burling LLP
The New York Times Building
620 Eighth Avenue
New York, New York 10018-1405
[e-mail]
Counsel for ByteDance Ltd. and TikTok Inc.
RE:

Administrative Subpoena

Dear Mr. Hall:
Pursuant to the International Emergency Economic Powers Act (“IEEPA”), 50 U.S.C.
§ 1702, Executive Order 13873 (84 FR 22689, May 15, 2019) (“Securing the Information and
Communications Technology and Services Supply Chain”), and Executive Order 13942 (85 FR
48637, August 6, 2020) (“Addressing the Threat Posed by TikTok, and Taking Additional Steps
To Address the National Emergency With Respect to the Information and Communications
Technology and Services Supply Chain”), ByteDance Ltd. and any partners, subsidiaries, and/or
affiliates thereof, including TikTok Inc., (collectively, “ByteDance”) is directed to provide the
U.S. Department of Commerce (the “Department”) with the records requested in the attached
Administrative Subpoena.
Any questions related to the issuance of this subpoena should be directed to Ms. Deborah
A. Curtis, Chief Counsel for Industry and Security, who is the Department’s primary point of
contact for purposes of this subpoena. Ms. Curtis can be reached by phone at
or
by e-mail at
. The Department’s alternate point of contact for purposes of this
subpoena is Mr. Opher Shweiki. Mr. Shweiki can be reached by phone at
or by
e-mail at
.
Please note that the Department welcomes a discussion regarding the production of the
identified records, including the possibility of a scheduled prioritization of such production.
Sincerely,
Digitally signed by

JOHN
JOHN COSTELLO
COSTELLO Date: 2020.09.03
17:34:32 -04'00'

John K. Costello
Deputy Assistant Secretary
for Intelligence and Security
U.S. Department of Commerce
Enclosures

Case 1:20-cv-02658-CJN Document 15-24 Filed 09/23/20 Page 3 of 8
UNITED STATES DEPARTMENTOF COMMERCE
DeputyAssistantSecretary forIntelligenceandSecurity
OfficeofIntelligenceandSecurity
Washington, D.C. 20230

ADMINISTRATIVE SUBPOENA
VIA ELECTRONIC MAIL
September 3, 2020
John E. Hall
Covington & Burling LLP
The New York Times Building
620 Eighth Avenue
New York, New York 10018-1405
[e-mail]
Counsel for ByteDance Ltd. and TikTok Inc.
Dear Mr. Hall:
Pursuant to the International Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. § 1702,
Executive Order 13873 (84 FR 22689, May 15, 2019) (“Securing the Information and
Communications Technology and Services Supply Chain”), and Executive Order 13942 (85 FR
48637, August 6, 2020) (“Addressing the Threat Posed by TikTok, and Taking Additional Steps
To Address the National Emergency With Respect to the Information and Communications
Technology and Services Supply Chain”), ByteDance Ltd. and any partners, subsidiaries, and/or
affiliates thereof, including TikTok Inc., (collectively, “ByteDance”) is directed to provide the
U.S. Department of Commerce (the “Department”) with the records identified in the attached
Addendum and its associated Rider defining terms.
Failure to respond to this Administrative Subpoena may result in the imposition of civil
monetary penalties by the Department. Further, under 18 U.S.C. § 1001, knowingly and
willfully falsifying or concealing a material fact in your response to this Administrative
Subpoena may result in criminal fines, imprisonment, or both.
Due to the public health national emergency declared by the President on March 13, 2020, this
correspondence is only being delivered in electronic format and therefore should be treated as
official correspondence from the Department.
Please provide the information set forth above in writing, either in hardcopy or electronic format,
and send it no later than 7 calendar days from the date of this Administrative Subpoena.
Address your response as follows:

Case 1:20-cv-02658-CJN Document 15-24 Filed 09/23/20 Page 4 of 8
UNITED STATES DEPARTMENTOF COMMERCE
DeputyAssistantSecretary forIntelligenceandSecurity
OfficeofIntelligenceandSecurity
Washington, D.C. 20230

Attn: Deborah A. Curtis
Chief Counsel for Industry and Security
U.S. Dept. of Commerce
1401 Constitution Ave. NW
Washington, D.C. 20230
Attn: Opher Shweiki
Chief, Enforcement and Litigation Division
Office of Chief Counsel
Bureau of Industry and Security
U.S. Dept. of Commerce
1401 Constitution Ave. NW
Washington, D.C. 20230

The primary point of contact for purposes of this administrative subpoena is Deborah A. Curtis,
and the alternate point of contact is Opher Shweiki. If you have any questions, please reach Ms.
Curtis at
or
, or Mr. Shweiki at
or

Issued on behalf of the Secretary of
the Department of Commerce:
Digitally signed by

JOHN
JOHN COSTELLO
COSTELLO Date: 2020.09.03
17:33:29 -04'00'

John K. Costello
Deputy Assistant Secretary
for Intelligence and Security
U.S. Department of Commerce
Attachments: Addendum – Requests for Records
Rider – Definitions

Case 1:20-cv-02658-CJN Document 15-24 Filed 09/23/20 Page 5 of 8
ADDENDUM TO ADMINISTRATIVE SUBPOENA
REQUESTS FOR RECORDS
1. Records related to ByteDance’s present ownership or operation of any data centers in
the United States (“U.S. data centers”), including:
a. Records reflecting the locations of the U.S. data centers;
b. Records reflecting that data from the TikTok application is stored or managed in
or on the U.S. data centers;
c. Records reflecting what analytics are conducted on TikTok data, including user
data (messages, locational data, demographic data or other identifiable
information for TikTok users) by U.S. data centers; and
d. Records that data related to the TikTok application is transmitted by or through
the U.S. data centers.
2. Records related to ByteDance’s present lease of data hosting, cloud/storage
services, or managed services within the United States (“U.S. leases”), including:
a. Records of the parties to the U.S. leases;
b. Records reflecting the locations of the services that are the subject of the U.S.
leases;
c. Records reflecting whether TikTok user data is stored or managed as part of the
U.S. leases;
d. Records reflecting the analytics conducted on TikTok user data by parties to the
U.S. leases; and
e. Records reflecting that data related to the TikTok application is transmitted by
parties to the U.S. leases.
3. Records related to data centers or servers located outside of the United States that, at
present, store or manage TikTok user data from TikTok mobile application users located
in the United States, including:
a. Records reflecting the locations of the servers or data centers;
b. Records reflecting that data from the TikTok application is stored or managed in
or on the servers or data centers; and
c. Records reflecting what analytics are conducted on TikTok data, including user
data (messages, locational data, demographic data or other identifiable
information for TikTok users) by these servers or data centers;
4. Records reflecting the primary domain names or Internet Protocol (IP) addresses presently
used by TikTok clients for users in the United States.
5. Records reflecting ByteDance country locations for all present ByteDance
authoritative name servers.
6. Records reflecting all present TikTok registered domain names from U.S.-based registries
or registrars, including the identities of such registries or registrars.

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Case 1:20-cv-02658-CJN Document 15-24 Filed 09/23/20 Page 6 of 8
ADDENDUM TO ADMINISTRATIVE SUBPOENA
REQUESTS FOR RECORDS
7. Records of all ongoing ByteDance contracts with third-party U.S. software
developers located in the United States for the TikTok application, including the
identities and locations of such software developers.
8. Records of all companies or entities located in the United States that ByteDance
presently allows, either implicitly or explicitly, to use the TikTok Application
Programming Interface (API), including the identities and locations of such
companies or entities.
9. Records of all ongoing data peering relationships between ByteDance and
companies or entities within the United States, including:
a. Records reflecting the identities of those companies or entities, their locations, and
the nature of those relationships; and
b. Records reflecting an accounting of all ByteDance data transit relationships with
U.S. transit providers.
10. Records outlining all ongoing content distribution network provider arrangements
maintained by ByteDance within the United States, including the identities of all U.S.
companies or entities with such an arrangement, their locations, and the nature of those
arrangements.
11. Records of all ongoing partnerships or agreements maintained by ByteDance with
U.S. companies or entities involving the integration of TikTok functionality into
other software, services, or platforms, including the identities and locations of such
U.S. companies or entities with those agreements.
12. Records of all U.S. companies or entities with whom ByteDance presently
maintains commercial partnerships or agreements, including:
a. Records reflecting the nature of all commercial partnerships or agreements
between ByteDance and U.S. companies or entities where analysis of data
sourced or derived from the TikTok platform is used;
b. Records reflecting the nature of all commercial partnerships or agreements related
to artificial intelligence involving data sourced or derived from the TikTok
application or TikTok user data; and
c. Records reflecting the nature of all commercial partnerships or agreements
for sharing data sourced or derived from the TikTok application.
13. Records listing all ongoing agreements or partnerships involving ByteDance to
share or otherwise provide any user data to third-parties for data sourced or derived
from the TikTok platform, including:
a. Records listing all companies or entities with any such agreements with
ByteDance, including their city, state, and country of location.
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Case 1:20-cv-02658-CJN Document 15-24 Filed 09/23/20 Page 7 of 8
ADDENDUM TO ADMINISTRATIVE SUBPOENA
REQUESTS FOR RECORDS
14. Records listing all data from U.S.-based TikTok communications that is manually
reviewed, including:
a. Records of any instructions, guidelines, or memoranda explaining the decisionmaking process to automatically filter and review messages as opposed to
manually review such data;
b. Records listing all facilities presently maintained or engaged by ByteDance
for manual review of TikTok data; and
c. Records of the present staff and employment composition of such facilities that
engage in or engaged in manual review of TikTok data for or on behalf of
ByteDance.
15. Records identifying, outlining, or demonstrating the ongoing use of the TikTok platform
for engagement in cross-device tracking, including any records articulating the technical
means implemented for the engagement of cross-device tracking on the TikTok platform.
16. Records outlining whether ByteDance, including any of its contractors or subsidiaries,
conducted a formal Privacy Impact Assessment for TikTok or any of its functionalities,
including all records, drafts, and distribution lists for all such Privacy Impact
Assessments.
17. Records related to any ongoing partnership or agreements between ByteDance and U.S.
companies or other entities in the United States to develop or enable encryption or
decryption capabilities for the TikTok application, to include the identities of those U.S.
companies or entities.
18. Records related to ByteDance’s employees and third-party contractors of ByteDance
located in the United States, who are presently employed or contracted to develop,
maintain, or otherwise support the TikTok application, to include records reflecting the
details of these arrangements, the number of personnel, their responsibilities, and the cities
and states of their locations.

3

Case 1:20-cv-02658-CJN Document 15-24 Filed 09/23/20 Page 8 of 8
RIDER TO ADMINISTRATIVE SUBPOENA
Definitions
“ByteDance” shall mean ByteDance Ltd. and any partners, subsidiaries, and/or affiliates thereof,
including TikTok Inc., (collectively “ByteDance”).
“Records” shall mean any document, writing, graphic matter or other tangible thing, whether
printed, recorded, produced by any process, or written or produced by hand, including, without
limitation, agreements, contracts, memoranda, letters, reports, other written communications,
electronically stored information (as defined hereunder), correspondence (as defined hereunder),
telegrams, internal and external memoranda, summaries, records of oral conversations, original
or preliminary notes, diaries, calendars, analyses, projections, ledgers, work papers, photographs,
tape recordings, applications, video tapes, computer hard drives or disks, statistical statements,
logs, graphs, charts, schedules, notebooks, minutes or records of meetings, minutes or records of
conferences, lists of persons attending meetings or conferences, reports and/or summaries of
investigations, opinions or reports of investigators, accountants or consultants, studies,
appraisals, evaluations, or copies of any of the foregoing if the copy is in any way different from
the original.
“Electronically stored information” or “ESI” means originals and all copies of electronic mail
(“e-mail”); activity listings of electronic mail receipts and/or transmittals; voice-mail; audio or
video recordings of any kind; facsimiles; computer programs (whether private, commercial or a
work-in-progress); programming notes or instructions; output resulting from the use of any
software program, including word processing documents, spreadsheets, database files, charts,
graphs, and outlines; operating systems; source code of all types; and electronic files and/or file
fragments of any sort, regardless of the media on which they are stored and regardless of whether
the data resides in an active file, deleted file, or file fragment. ESI also includes the files, folder
tabs, containers or labels appended to any storage device containing electronic data. All ESI
produced in response hereto should be produced in native format. ESI, such as e-mails and word
processing documents, shall be produced in native format with its original formatting and
metadata intact. If, and to the extent that ESI is maintained in a database or other proprietary
software, production shall include documentation and software that will enable access to the ESI
or database as such access would occur in the ordinary course of business.
“Correspondence” shall mean all inquiries, discussions, conversations, communications,
negotiations, agreements, understandings, meetings, telephone calls, messages (voice, text, and
chat), e-mails, letters, notes, telegrams, and all other forms of oral or written discourse.
The terms “involving”, “reflecting” and “related to” mean having any connection, association,
or concern with or any relevance, relation, pertinence, or applicability to or any implication
bearing on, the subject matter, whether directly or indirectly.
The word “and” includes the disjunctive “or,” and the word “or” includes the conjunctive
“and”. Words in the singular shall be interpreted to include the plural and words in the plural
shall be interpreted to include the singular. The use of any tense of any verb shall be interpreted
to include all other tenses.

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