larning the morning your honor and please the court thomas firing from the department of justice here for the government defendants who are appellants in this case the district court's injunction here misunderstands the scope of i e that exceptions and section seventeen know to be in plaintiff's interpretation of the language in that provision concerning indirectly regulating or prohibiting conduct which has no limits at all and was and is directly contrary to this court's precedent in wall against brady in that case this court rejected a similarly broad argument that a substantial burden on importation of in for informational materials would be a precipitous indirect regulation of that conduct the district courts women or injunction here can't be squared with that pre only prohibition at issue here is not the equivalent of regulating directly or indirectly the activity of users on that app or the platform it serves here the prohibitions  posed by the secretary of commerce and the president regulate only the commercial transactions that make a particular mobile app available within the united states they do not target in the protected activity of the users on the tectonic part for who are able to import and export information or information materials or exchange personal communications using either that platform for example or on a web browser or other platforms that are also available to them the fact that the activity of the users  constrained by the commercial prohibition at issue here is dispositive you cannot enough that there might be an incidental fact as the plaintiffs argue that might  skates and wash seems less helpful because that was a ban on travel and it just happens in that instance to pick someone who wanted to travel important but it was sort of a one  start if i may by going back to wash it self which made clear that it was an indirect regulation of importing posters from cuba when the government required any payment for those posters to be put in a blocked account and prevented the seller from accessing it that was what this court identified there as indirectly regulating and what the court thought that congress was principally concerned about so trent translating that to this context is obviously going to be imperfect congress had had nothing like this in mind obviously as as industries went out we would say however that there are examples of indirect regulation that effectively prohibit all importation or exportation of informational materials and that's what would make them like the blocked account example in walsh so for example you could imagine a prohibition imposed by the government would obviously be a direct regulation just to start there your honor if the government said no importation or expertise in the videos to china that would be the kind of direct regulation prohibited by seventeen and would be an indirect regulation for example if the government said not to users importers or export americans but instead to all internet service providers i a species if the government said to every i s p operating in the united states you must prohibit the transmission of any video to a chinese ip address that it seems to me would be an indirect regulation but what's going on here is quite different because it's a regulation instead of a particular platform bank gaging in a business that permits americans to undertake protected activity a company or a foreign government doesn't insulate itself from regular asian concerning national security creation so gentle and i think the same answer yes alternative means remain available so so i think the question then becomes is there a practical imposition of what amounts to a prohibition that's what the court in walsh said effectively i think was true of the blocked account requirement that was an indirect regulation there but it's not enough that a particular if you have it if the alternative is to my platform which will say pretty much purposes ninety five percent of the interchange between china the united states begins it's ninety five percent because it's enough why i think the st part of your your proposed distinction is relevant as well and that's what i was getting at if i may just continue to answer your question with the fact that the plaintiffs here put in evidence in support of their requests for a pull in the injunction demonstrating that there really were effective alternatives and that was their business concern was that users would migrate to those alternative platforms and wouldn't come back to this one even if it were later made available so you're legal test we have to articulate a test i just don't see anything is helpful maybe as you do in wash what would you say in an indirect regulation so i think the language of water is relevant then that would be an indirect regulation by the language of this court's decision so perhaps just look up i'm going to go against what i was trying to get at is that to the extent we're trying to understand the lesson of walsh and the scope of the precedent that this court has decided if you're asking would would it would a ban on what is a far better me evidence demonstrates that it's not true to the extent far better than does factor into your definition even if it's not a total ban not our definition your honor i'm trying to answer your hypothetical in other words i think in reality band is is the definition this court has offered and the question then becomes well is it in reality a ban if there is a preferred alternative that really is so much better i don't know the answer to that in effect than means that you know whatever was regulated which is nod and then this really is direct regulation by another name and it seems a fairly narrow definition of indirectly well in reality band is what the court said and and i think  meaning to indirectly regula case but other times it sounds to me like you're saying the government's position is defacto ban and that's what i'm trying to sort out right now is  what they're not banned for to be st of all the president's executive order and the secretary's come decision memo made clear that the particular most significant risk here is from the mobile app itself not from the platform as a whole and other means of accessing the platform remain available so for example web browser can access the tectonic platform without posing the same national security risks similarly a  significant privacy concern and includes a vast array of sensitive personal information at stake here similarly collecting for data which is available and has been done from the the fact is there is a wide swath of data that's collected by the tech talk mobile now that the president and the secretary identified as permitting d the chinese government and the communist party of china to  collect information on americans and compile vast databases that pose a threat to the security of the economy of united's the same videos we're getting shipped back and tock because of the medium you say you can ban them that's what i mean it's another thing i'm going to tell writers more but but i'll point out that the purpose the concern here is related to how the tech talk mobile app collects cardless of the medium of transmission it seems to me you're making a difference based on the medium of transmission whether it's easy whether it's through a web browser or through a mobile app how is that not distinguishing the same material on the basis of the medi provision seven to no to be three congress recognized that there may be that there is a difference between regulating the transmission of the materials on the one hand and regulating the medium on the other hand and it is the transmission i'm sorry not the transmission importation or exportation of those informational materials that d congress ought to protect and so it may be judge millette in a particular circumstance i'm going to i'm going to offer a crazy hypothetical if it were demonstrated that fingerprints would always be present on a cd and that the collection of those things prints by a foreign adversary a foreign government posed a threat to national security that perhaps would be permissible to regulate the transmission of videos by c d s but permitted by other means of bio by another medium of transmission it would not be in reality a ban of the importation or experts haitian as the court and waltz to do so so the distinction between user activity on the app and regulation of the app itself is that this is the key distinction here that we think demonstrates this is not an indirect regulation of user activity well let me just ask you then what do you understand the sub power grab addressing because it is following that does not phrase in other words so in your brief you are arguing in part that all you are seeking to do is to regulate one form or another business to business transaction going to send sell the company that type of thing not affecting me and how i get information or what medium i use get that information information materials joy understand correctly that's what we've been talking about for the last minute yes that's right drudgeries and so i think that the the the distinction i just was discussing with judge millette i would i would emphasize here as well that regulating the business of the tick tock mobile app is distinct from regulating the conduct and protected activity of users on that platform so whereas the user can still send videos using other means the government is free to prohibit the business activities that support the mobile app that poses a national security that's the key distinction iran or even given the language i'm just trying to understand what congress had in mind when it wrote this language it's saying the president can't do this correct journal but what it says the president can't do is regulator prohibit directly or indirectly importation or exportation of information or informational materials and walsh says that it's a regulation indirectly if it's in reality a ban on the importation or expectation that's a far greater standard a higher standard than merely regulation of preferred method of importing or exploiting informational materials so just as the plaintiffs in walsh wanted to travel because that was the preferred method he wanted to negotiate the importation of cuban posters just because user here want to use the mobile app as a means to send their videos doesn't mean that it's an indirect regulation by the government of sending videos to prohibit the mobile app from operating in this country control and let me offer another perspective on control in the sense that the holding is on all fours the issue that's here there may be language in it that you're using to aberrated on your reasoning but that's different detroiters they don't think it's just that the holding in paul specifically rejected the kind of broad interpretation of indirectly regulate that the plaintiffs here have offered in the district court relied on in that sense we think it is controlling and that the district court's injunction cannot be squared with this court's decision the plaintiff in walsh said that anything that is a substantial burden on importation or expertise of information or materials is in direct regulation this court's holding rejected that argument that plaintiffs here argue anything that prevents the use of a particular prefer platform or burdens the use of that platform in direct regulation that is inconsistent with walsh's holding  they're all banned so that people are back to snail mail c d s if they can buy them let's i'm assuming they can so it's an alternative it would not be an indirect regulation speech doing governments wou seventeen o two b three and it did so in a way that recognized it in hands of all informational material was also protected but that intangible informational material is the video if not the means of transmission by a particular on a particular platform or in a particular medium that's why it's important that congress nevertheless maintained that regardless of format or medium of transmission distinguishing between the information that  to import or export on the one hand and the means that they seek to do so on the other as long as it's not in reality a ban on the import or export if not in indirect regulation spoke earlier about the hypothetical i suggested where because the government cannot directly prohibit something it can't require a private company to print to read it something easier if it's if it's an altogether  sweeping provision leaving no alternatives so similarly if the government can't regulate by i'm having trouble imagining what the kinds of regulations we might we might have are but let's say registration of every video sent to china that might be a regulation one might imagine requiring every user to to register with the government so that would be a direct regulation it can't require every i s p using the example of gov lior to maintain a list of every user's video central received from to or from china i could imagine that that being an example in direct relation but here the key to it is that it would it would regulate d all imports and exports of the informational materials not just a particular method or platform that some users might prefer and that's the key distinction that we are in besides and the reason this is important trench know it is that congress did not intend to allow for an adversary to evade d regulation of conduct that threatens our national security merely by engaging in a business or offering up a platform that american users might prefer to use in some circumstances to export or import information that would be a significant undermining it would it would as this court in walsh sa his interpretation gets different i never heard you say the government claims difference we're not seeking deference with respect to anything in the commerce secretary his decision but i will point out that we have cited for example to a treasury department ofac regulation that has been and those regulations have been recognized by this court and others rd circuit seconds are going to believe  creates a new and unique communication and in that respect you do subject to that distinction that's not something i'm sorry you asked about chevron deference and i was merely pointing out that that's an example where there or or transfer of information and and there's no question there that the license is a thing of value but taken because also monetized the activity of users on the app in a way that is quite different from the examples of the postal service or a telephone company and so we think that even by that measure you days it is a thing of value to everyone involved the way that tick tock has extracted value from user activity in this and that itself demonstrates the can some of the concerns that the government has identified about the sweeping collection of sensitive personal data here thank you your honor may please the court best brinkman for the plaintiff pallies the commerce department is prohibition would restrict a robust community of millions of americans sharing personal communications information materials on the tick tock that prohibition violates congress's explicit limitations on naive tortie the government's argument that prohibition regulate the business to business transaction doesn't change that fact of government programs you can regulate more than one thing congress specify here that you produce is not authorized interact regulation that means the government cannot choose to restrict communication by choosing the internet means to do so there may be close cases but this is not one of them the probation stops us users from exchanging videos photos ar audio is text political messages and it was designed to do just that i wanted to take a moment in terms of the walsh case as it was just like and what interact regulation means the restrict travel to cuba and the court held it could be because it was only tangential to the importing of the posters indeed a full examination of that pinion indicates that blocked that was not prohibited that's in fact what existed before the nine hundred and eighty eight dollars amendment and that's why this court discussed it in the walsh case it's exactly that tempest situation which we aren't here the government tried to say sure certainly in the walsh case the court explained what was an interactive regulation it was not allowed you know exactly that because here the government tries to say oh we're available that is exactly what's happening here is in direct regulation the idea that there could be some kind of alternative that would satisfy that i just would want to say several things st of all the tick tock it doesn't say so long as you can do it some other way there's nothing like that in the statute this is about the tax just that it's you know to be and it's not in a statute and just to give an example to try and say that's not in directly regulating the messages if they were in a large newspaper and the government said you know you have a lot of editorial writers you have a lot of subscribers you don't need anymore we're just going to say no more you can keep doing what you have but no that people can still used to talk in new new users can still used to talk they just can't use on the mobile and so so they're not really talking about what the agency did here under the treasury doctrine we looked at what the agency relied on and the time just to court here from both the purpose and to fact this regulation was to interact lead regulate  twenty three of the joint and this is where i'm under a section called vulnerability and the commerce department is talking about the vulnerability they perceive in their eight listed categories i just want to focus on number three this is a quote they're talking about what's collected in what poses the vulnerability quote user generated content including comments photographs videos etc that is what's being regulated here and it talks about you know denying access reducing functionality and that it goes on and off with the objective with the object of preventing collection transmission aggregation and again back on page network contacts soon you will still be available or not you know i really have to look your honor but i'm sure of that majority of it would be that the government has made no attempt to distinguish the record indeed again because we're government at the collection of this sort of data from a foreign power presents a national security of valid national security concern this requires  know nd guessing every national security determination here for several reasons your honor jack nicholson looks directly at that and indicated this was a question of statutory interest in construction not nd guessing that he also then also looked on its face at the congress department's rationale and pointed out that what the commerce department speaks is a country of china and then says could possibly maybe at some point in the future there might be something  not talking about the plaintiff that's right on its case also that kind of basis in the record i would say also we have other challenges remain in this case and it relies on very security updates which is just counter factual to their claim that they state again just on its face and the last thing i would say your honor again we do not at all are asking or believe the parties are addressed that but just to give that that an app controlled by a foreign government could be used if downloaded could be used to by the foreign government as a gateway to be able to hack into e mail systems and other sayings of that nature and for that reason  the president banned the app you're saying that because z because of the way that congress has drawn t statute that would not be a permissible regulation but we're saying your honor is something different from that that suggests there's some regulatory void if this is our into appreciation of i even mean the  st thing i would say is that my hypothetical that the president ordered that well there's only applies if you use the i even already to try and do that the government has plenty of other tools at its disposal and this is and you're going to be three limitation that has or do with classified information information about military installations congress also referred in there to export controls also that number not excluded from your regulation three so congress whether through very carefully and said what b three applies to or not and that's what it did i'd also say the walsh case certainly if there were concerns about data security i can't imagine any regulation that addressed data security in a way they did not have an effect on the transmission the communications and the information material congress has to look at transactions and she find medications for that but if it's a security issue when they're looking at me again that's what you would look at any good i guess ultimately your honor if for some reason all of the tools  government's tool box could not trust a national security concern there is congress of course to take action what we do know is that congress not once but twice amended the statute to reinforce these reachable to anybody in your contacts and they can be released and controlled so it turns out it is st downloaded by everybody we don't know and then it's released it's a communication of just like this and it's really popular and it's really you need are you saying that what the statute says is that the government could not be people and continuing to download this virus downloading this it is tips rohene communications networks are computer and mobile phone networks stop don't downloading that stuff and they really they have to wait for congress to come in and add something say get somebody if they can find somebody within their jurisdictional reach but it's seems to me that i mean there are real consequences to interpret in this language as broadly as you're proposing national security and it just strikes me that when congress said what they what they would be getting there is really not communications it is the reagan technology that with the technology when it's downloaded this virus or what messages you're sending  that's not a regulation your honor it's clearly not this case obviously i will talk about it but again as i said earlier there might be cases where there is line drawing where it has such a tangential impact under suggesting that there's any barriers to track or anything like that to be clear how would what is the what definition you term would you use and here to say ruling for you in this case would not require ruling for you if we rule for you in the skids we think that when you're looking at that type of situation is such a far cry from this situation where and i just want to appear her going to a purpose i mean tragical task looked at the purpose and you know i'm not sure that could be any different analysis your honor is what i'm saying is that the purpose there was for this overwhelming national security think that would be very different from here so that might be another just didn't look very you know let's me look at  changing your your honor and the question of what is the government should do we would say three things there are a lot of alternatives it would be but has never been used even with an i q but to be three at south congress it is very clear about classified information military installations and bert there is judge nichols approach that would say purpose would address your situation also that the purpose there would not be to to you know regulates the content or the video so that it was a treat in answers i propose to your hypothetical not of which are necessary in this case nor need be reached in this case and you know we agree your honor that which isn't allowed in some sort of permissible burden which is we would look to the watch case your honor we think that language there of tangential effect is very useful it really goes to th what interrupt regulation means if you know you are trying to stop the import of something or stop the transmission of master genesis and you say you know i'm just going to shut down the you know  what if they get paid for the way they use the app that is interacts regulation but if you're doing something else and all those messages are still flowing those posters are still being imported but there's this other thing that you know you can't use said unless and until you know to talk needs to change its license and disable certain features in the software that we think pose a national security problem and we're giving them you know thirty days to do that you know if they don't then the in the app is is banned from further downloads could could the president do that under i  various transactions there currently are ongoing discussions under that very authority the president issued an order and yours if you week after this order and those negotiations and i'm just guessing you're still i mean when we interpret a statute we don't normally look to see you know well for we interpret it this way we shouldn't be worried because all of these other statutes you know can cover you know these these other situations i mean we need to look at the text of this statute in the see given the concern that congress had which is to give the president the ability to act unilaterally once or proper declarations and procedural requirements are made to protect national security know if you have if you have a hypothetical case where there's no question there's a serious national security risk that's posed by software that's downloaded on mobile phones  seems to me that your interpretation that you would ask us to adopt doesn't allow the president to use this authority to to to act and even in the that i just pose that if if the president says look change these particular sayings about the application in do it by this date or i'm going to block the you don't seem to be willing to admit that that is permissible because of the thirty let me be clear your honor i did not mean to say that was not permissible i think it's more appropriate under see if yes i think that this whole regulatory schemes that are for mitigation and all of that the process but here your honor regulation if the commerce department had done that again we have to look at what the commerce department did here they didn't do that at all if the commerce department were looking at that it had separate chart a national security concern and they have a record to support it and again i have to say in that situation they would have had to give us notice and comments respond we didn't get noticed and comments respond so we can explain to them all the security measures that we do have in place there's a declaration below that explained i mean that's not all relevant to this data you think i'm just giving you the context if it played out it would have played out very very differently and that well might be something that did not interact with regulates communications because there could be measures taken that didn't have that the communications so i just might be clear about that i'm sorry i was unclear before i was perhaps jumping too quickly to the other and that it's all out there so that is an approach it would not come to that because there are all of these it's data security provisions that can be taken in fact to track tapes and that's what the declaration indicate there but after that one member period of intens think you can do this i understand yes so i think you have to look at the interaction of those two but in fact the commerce department regulation here prohibition just look at the interaction between the two because even acknowledges that the prohibitions will not appl it's a real crisis and it really is focused on technology that's the real problem and i thought your argument was here's the process for dealing with that but if it doesn't actually allow them to see the hemorrhaging stop the downloading yeah and it's seems like it's not is there some other authority that would let them go  of the government has many at the words your honor i can't sit here and count long all of them but there certainly are export controls import controls that are allowed there are anything that would be tangential but i would also say your honor again when that if that day comes in that issue was presented he said you different situation than this i just want to say again it goes to this question for example a purpose the judge nickols focused on here it's clear that the purpose than a fact here is to something that just is not something that the court needs or grapple with today and i think there are a lot of different analyses the interaction with other statutes the interaction with other national security authorities of the government and you know the idea of a situation that's different from this where the purpose is wholly different than what the purpose was here so i would say all of those i think should give comfort and addressed the situation there are tools for courts and the executive and the government to the authority to regulate or prohibit directly or indirectly and then it has the person communication and informational materials and the information materials is quite broad her marshall or not regardless of format or medi here all right why don't we hear from counsel for thank you joe drudgeries i want to make a couple points in just to address what my cozen council was discussing so st of all the statutory language here protects the rights of americans to certain activity like importing information in the trios it doesn't protect the rights of businesses or foreign governments and that's important because walsh emphasized the need for line drawing there was a discussion about line drawing and it's indisputable that waltz emphasized recognize that there's a need to downloading an app actually judge rogers that we haven't addressed that question nor have plaintiffs in the briefing in this case and i think it's obviously something of concern to us yes and i think that concern is serious because i don't think anyone has identified a similar emergency has already to address the kind of imminent threats to national security that judge millette and judge welcomes in their hypothetical examples posed i e but is designed specifically to address those kinds of threats and the fact that a particular business or a particular foreign government seeks to hide a national security threat in a business or an activity that allows americans to engage in personal communications or exchange of informational materials does not insulate that business from regulation of the threat it poses to national security under the the other point i want to emphasize is that acknowledge there's a national security concern here but they never in the last double down on this interpretation that i use but doesn't reach this kind of national security threat if there's any implication any effect on  communication or informational exchange if this were a ride share app or a video game that collecting the same sensitive personal information there's no doubt you could regulate it here to be insulated just by pointing to the fact that americans might wish to use it for these protected activities that's not what congress intended and find they want to emphasize that walsh walsh's reference to the tangential nature of the travel at issue there was not the court's articulation of the standard with the meaning of indirectly regulator prohibited it was the instead an example of the court's chevron deference to the treasury department's own rationale for why it finish your point and i did thank you sorry i know we only have the st prohibition before us but on this theory about use of the web browser with the th prohibition it says i know your honor we don't know the answer they get but i think the that it might not in the reason is that the language of the probation again like all of the prohibitions and executive order referenced that hitchcock mobile application that is the particular the only reason i mentioned it is because the prohibition at issue here is limited solely to the mobile app and its limited solely to its availability on top stores that is a targeted  regulation designed to address the specific threat identified it is not the kind of in reality ban of the importation or export taishan of informational materials or for personal communications that is the meaningful difference that i think is relevant not whether web browsers are different in some other way around and that that like the other questions that plaintiff has raised in your complaint remain to be resolved as the case proceeds on the merits and district court this question before the court now is whether the preliminary injunction can be upheld solely on the basis that the district court articulated that it is an indirect regulation of americans protected activity that's not what the if under seal by national security officials telling us the urgency of these actions and then in particular not to have to stay so much trying to get a measure here in the government so in february your honor it is it is into every is all i can do if i may address your question of just what this case is the furthest along of the appeals and we were asking the rule expeditiously to in light of the national security concerns identified this court rules in our favor we could seek additional release in other courts and and and that could be a basis for doing so we thought it was better not to impose a burden both d on the court and on the parties in this case to duplicative plea brief both stay and expedited briefing and we thought that it was essential to allow the court to consider the merits questions posed the likelihood of success on the merits that is posed d by this case and so we s and in the right and i think this argument posing council acknowledged the national security threat is legitimate and there's no basis to nd guess the presence of the nation on that question is there any timetable for the committee you're referring to committee the city is proceeding your honor and i am not familiar with the details of that my understanding is that that's a separate track but i'll also point out that the plaintiffs have filed a separate petition for review in this court which will proceed on its own track concerning that statutory process we think it's not relevant however to the interpretation of the connection and