Today, as TikTok filed a request with the Supreme Court to stay a law that could take the app offline as soon as January 19, CEO Shou Zi Chew met with President-elect Donald Trump to plead his case. But it may actually help Trump politically for the ban to go into effect.
The law, passed in April, gave TikTok’s Chinese parent company, ByteDance, 270 days to sell the app to a non-Chinese company or see it banned in the U.S. But ByteDance didn’t try to sell TikTok. Instead, it challenged the law in court, insisting that it violated TikTok’s and its users’ First Amendment rights. But in an unusual interpretation of First Amendment law, the powerful DC Circuit Court of Appeals ruled earlier this month that the law was constitutional and in fact necessary to protect Americans’ right to free speech. It also denied a request from TikTok to stop the law from going into effect before Trump takes office. ByteDance has now asked the Supreme Court to stay the law, arguing that even a temporary shutdown of TikTok would disrupt advertising contracts worth billions of dollars, scare off potential business partners and accelerate creators’ shift away from the platform.
The Supreme Court could grant the injunction as a favor to Trump, who might even try to intervene in the case on behalf of TikTok. But Trump might want TikTok to be banned on Joe Biden’s last day in office. If that were to happen, he could be its hero.
Trump has made a promise to “save” TikTok that the law doesn’t really allow him to keep. The only authority he’ll have is the power to give ByteDance a one-time, three-month extension to facilitate a sale of TikTok to a non-Chinese firm, something that ByteDance has insisted it will not do. But if TikTok goes down on January 19, Trump will be able to blame it on outgoing President Biden, and then bring the app back online with the one-time extension just hours after he comes to power. The optics will be immaculate — and Trump is all about optics. He’ll have met his campaign promise, and if ByteDance still hasn’t sold three months later, that will be their fault, not his.
This stroke of realpolitik would leave ByteDance in a tricky spot. A three month extension would be welcome, but ByteDance has said it will not sell. What it really wants is to be able to keep operating TikTok itself — and an extension would give the company time to try to persuade Trump that something short of a full divestment is adequate.
Even there, however, Trump’s authority is limited. The text of the law specifically prohibits Trump from signing off on an agreement to address national security concerns, like the data sharing limitations and algorithm audits that ByteDance already proposed with Project Texas. The law states that any sale of TikTok is not adequate when it “establishe[s] or maintain[s ] any operational relationship” between the new TikTok and “any formerly affiliated entities that are controlled by a foreign adversary,” i.e. ByteDance, “including any cooperation with respect to the operation of a content recommendation algorithm or an agreement with respect to data sharing.”
Trump, of course, could try to say that Project Texas is adequate anyway — he has certainly disregarded laws before. But in this case, a legally dubious certification might not hold much weight. The law says that American companies including Google, Apple, Oracle and Amazon could face enormous fines for helping keep TikTok online in violation of the law. With those stakes, a mere Truth Social post or even an Executive Order might not be enough to convince American companies to bring the app back online. If Trump attempts to throw TikTok a bone outside the bounds of the law, American companies might ask the courts to weigh (back) in — to ensure that they don’t incur billions in fines for trusting a guy with a track record of changing his mind.
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