Topline
The federal ban on TikTok is set to take effect Sunday unless the Supreme Court steps in to stop it, and while reports Wednesday suggest President-elect Donald Trump is mulling an executive order that would quickly reinstate the app, he may have limited options should the law be upheld—and his attempts to stop it could be challenged in court.
Key Facts
Trump opposes the TikTok ban taking effect, his lawyers said in a recent court filing, and the president-elect asked, “Why would I want to get rid of TikTok?” on Truth Social, posting a graphic that boasted his popularity on the platform and the billions of views his official accounts and hashtags associated with him have garnered.
The law—which prohibits U.S. app stores from hosting TikTok unless Chinese parent company ByteDance divests from it—is scheduled to take effect one day before Trump’s Jan. 20 inauguration, so Trump has also asked the Supreme Court to stop the law from taking effect until after he takes office, arguing he wants time to resolve the ban before it can take effect.
The Supreme Court has not yet ruled in the case or commented on whether it will agree with Trump’s request to pause the law, and it’s unclear if the court will issue a ruling before the law takes effect Sunday.
The law empowers the president to pause the ban for 90 days if TikTok shows it’s in the process of separating from ByteDance, so Trump could pause it once he takes office—which reports suggest he may do, as The Washington Post cited anonymous sources who said Trump is considering delaying the law for 60 to 90 days, and The New York Times similarly reported Trump could issue an executive order pausing the law until a deal with ByteDance is reached.
While any executive order could give time to negotiate a deal with ByteDance, if he pauses the law without actual evidence showing ByteDance is divesting, the executive order may not be legally sound, meaning it could be challenged in court and the ban could take effect anyway—or companies like Apple and Google could still take TikTok off their app stores regardless of what Trump says, in order to avoid any potential legal liability.
Trump could also similarly just declare TikTok in compliance with the law—regardless of whether or not it’s actually separated from ByteDance—University of Minnesota law professor Alan Rozenshtein noted, which would keep TikTok legal but similarly leave room for the move to be challenged in court or ignored by companies if ByteDance hasn’t actually divested.
Beyond that, Trump can’t do much: He could try to negotiate a deal for TikTok to be sold to a U.S. company so it would properly comply with the law, but if ByteDance isn’t willing to sell—which so far it isn’t—the ban will stay in effect unless Congress decides to repeal the law.
Crucial Quote
Trump’s incoming national security advisor Michael Waltz told Fox News Wednesday Trump has “been very clear” he thinks TikTok is a “great platform,” but also is “gonna protect [Americans’] data” from potential foreign interference by China. “He’s a deal maker, I don’t want to get ahead of our executive orders, but we’re going to create the space to put that deal in place.”
What Will Trump Do About Tiktok?
Trump has been “mulling” a range of options on how to handle TikTok, the Post reports. In addition to an executive order that would pause the law from taking effect for a few months, Trump has reportedly considered issuing an order that would “unravel the law”—which is all but certain to result in legal challenges, given the policy was passed by Congress with bipartisan support and presidents cannot unilaterally repeal federal laws. The Times similarly reports Trump could use an executive order to declare the law won’t be enforced, or that it won’t be enforced only temporarily until a deal is reached. Trump is reportedly eager to “make a deal” with TikTok and ByteDance, per The Post, with allies floating options that could include forcing a sale of TikTok’s U.S. assets in a way that would give the U.S. Treasury a cut of the proceeds, or revive TikTok’s “Project Texas,” a plan TikTok previously offered to the Biden administration about how it could handle the U.S.’ national security concerns without separating from ByteDance. Experts cited by the Post suggested China—which would have to approve any sale by ByteDance—would only be likely to cut a deal with Trump on TikTok as part of broader political negotiations between the two governments.
What To Watch For
The Supreme Court expressed skepticism of TikTok’s arguments against the ban during oral arguments on Jan. 10, signaling justices could uphold the ban. It’s been expected the court will quickly rule before the law is due to take effect Jan. 19, though it’s unclear when, as the court issued opinions in other cases Wednesday without making any announcements in the TikTok case. It has not announced any other days for releasing opinions before the law takes effect. Justices could also decide to temporarily pause the law from taking effect if they needs more time to deliberate, which could be announced at any time. Though Trump has asked the Supreme Court to pause the ban until after his inauguration, he isn’t a party in the litigation, and Rozenshtein told CBS News “there are no legal grounds” for Trump to unilaterally pause the law since he’s still a private citizen and isn’t actually the president yet. That means there’s no guarantee the justices will listen to his request—and they didn’t signal Friday whether they will—and it’s still possible the law could take effect Sunday, before Trump takes office.
Can Trump Just Not Enforce The Tiktok Ban?
While Trump could just declare his administration won’t enforce the TikTok ban, it’s hard to say whether that would actually work. Justice Brett Kavanaugh questioned Solicitor General Elizabeth Prelogar on Friday about that possibility, and Prelogar acknowledged Trump could order it not to be enforced and while it remains to be seen what the effects of that would be, there may be “safeguards” to legally protect companies who keep TikTok up as a result of his promises about facing penalties. Legal experts have suggested companies aren’t likely to take the risk and potentially subject themselves to legal liability by keeping up TikTok even if Trump says it’s fine, however, given the possibility that Trump could change his mind and decide to start enforcing the ban. “You could have a policy not to enforce this ban,” University of Washington Law School professor Ryan Calo told The Times. “But I think that maybe conservative companies would just be like: ‘OK, you’re not going to enforce it. But it is on the books, and you could enforce at any time.’”
Will Bytedance Divest From Tiktok?
TikTok and ByteDance so far haven’t shown any interest in separating, with TikTok arguing in a court filing that doing so is “not possible technologically, commercially, or legally.” It remains to be seen if the company will change its mind should the Supreme Court uphold the law and it actually takes effect, however, and Prelogar suggested Friday that justices upholding the ban could be the “jolt” that ByteDance and TikTok need to actually start the divestment process. Trump could also potentially have an impact on forcing ByteDance’s hand, as James Lewis, director of the Strategic Technologies Program at the Center for Strategic and International Studies, told NPR that China could be persuaded to approve of ByteDance selling TikTok in exchange for Trump backing off his threat of high tariffs on Chinese imports. A source familiar with ByteDance’s thinking told The Post that reports TikTok could serve as “part of a big bargain or a big negotiation” were “legitimate.”
What Happens If The Tiktok Ban Takes Effect?
The full impact of the TikTok ban taking effect is still unclear. The law does not ban Americans from using TikTok and wouldn’t wipe it from users’ phones, but rather bans U.S. app stores and internet service providers from hosting it. That would mean that users could not download or update TikTok from Apple or Google’s app stores, so it would grow obsolete and eventually no longer work. Oracle also wouldn’t be allowed to host TikTok’s U.S. user data, as it does now. Though it’s been unclear on whether that would result in TikTok shutting down entirely in the U.S., TikTok said in a court filing that banning internet service providers from hosting the app means the company could no longer “provid[e] the services that enable the TikTok platform to function, effectively shutting down TikTok in the United States,” and TikTok’s lawyer Noel Francisco reiterated that Friday, saying it’s his understanding that if the ban takes effect, “we go dark.” Multiple outlets report TikTok is planning to totally shut off access to the app in the U.S. on Sunday should the ban take effect as scheduled, with Reuters reporting users will only see a pop up message directing them to a website with more information about the ban. TikTok has told its U.S. employees they will still have jobs and the company’s U.S. offices will remain open even if the ban takes effect, The Times reports.
Will The Ban Impact Possible Tiktok Alternative Lemon8?
Yes, the ban is expected to similarly impact ByteDance-owned apps CapCut and Lemon8.
Surprising Fact
If the ban does take effect and block TikTok’s U.S. user data from being hosted by a U.S. company, it’s possible the data that TikTok already has on its American users could be moved to China, which a Forbes investigation found is what happened when India similarly banned the app. That would actually make it more likely the data could be accessed by the Chinese government, contrary to the federal law’s national security goals.
Key Background
President Joe Biden signed the bill requiring TikTok to leave ByteDance or else be banned into law in April, reflecting a bipartisan concern from lawmakers that the app poses a threat to national security. TikTok has long denied any wrongdoing or links to the Chinese government, but Forbes has reported numerous concerns involving the app, including TikTok spying on journalists, promoting Chinese propaganda that criticized U.S. politicians, mishandling user data and tracking “sensitive” words. The specific evidence the government has for justifying TikTok’s ban has not been made public, however, and was entirely redacted in court filings. TikTok and creators on the app sued to block the law days after it was enacted, arguing the ban unlawfully infringed on their First Amendment rights. A panel of federal judges sided with the government’s argument that the ban was justified due to the national security threat and did not violate TikTok’s First Amendment rights, given that users can still post on the app if it just separates itself from ByteDance. The court ruled the law as it was enacted is actually a less restrictive way of handling the government’s concerns about TikTok, given the fact it still allows the company to operate in the U.S. if ByteDance divests from it. TikTok appealed the case to the Supreme Court after the lower court declined to pause the law from taking effect, and the Supreme Court quickly took it up, scheduling arguments for Jan. 10 but declining to pause the law in the meantime.
