Washington — TikTok’s fate in the U.S. appears to be hanging by a thread after a federal appeals court denied its plea to delay a law that will ban the widely popular app if it does not cut ties with its Chinese parent company ByteDance.
The law, which goes into effect on Jan. 19, gave ByteDance nine months to sell TikTok. Absent a sale, the app will be cut off from app stores and web-hosting services in the U.S. The law also gives the president the ability to grant a 90-day delay if a sale is in progress.
According to experts, TikTok has several pathways for avoiding a ban, most notably intervention from the Supreme Court or the incoming Trump administration declining to enforce it. Other options, like a last-minute sale or Congress deciding to repeal the law, appear less likely.
TikTok turns to the Supreme Court
On Monday, TikTok asked the Supreme Court to temporarily pause the law, arguing the appeals court’s decision upholding it was “utterly antithetical to the First Amendment.”
“If the Act is allowed to take effect in January 2025 … this Court will lose its ability to grant applicants meaningful relief,” lawyers for TikTok and ByteDance wrote. “Even a temporary shutdown of TikTok will cause permanent harm to applicants — a representative group of Americans who use TikTok to speak, associate, and listen — as well as the public at large.”
Al Drago/Bloomberg via Getty Images
The Supreme Court could grant an injunction temporarily blocking the law while TikTok’s appeal plays out, saving the app for the time being.
The justices will also need to decide whether to hear the case once TikTok formally requests they do so. If they decline, the appeals court’s ruling would be the final say on the matter, and the ban would go into effect, barring intervention by the president. If the high court takes the case, the injunction would almost certainly be in place — and thus the ban on hold — until the justices hear and decide the dispute. That process would likely take months.
TikTok asked the justices to make a decision on its request for an injunction by Jan. 6 so that it can “coordinate with their service providers to perform the complex task of shutting down the TikTok platform only in the United States” if the justices decline.
The company said a sale is not an option at this point, but a prolonged legal battle before the Supreme Court could buy time to explore a deal. The Chinese government is opposed to selling TikTok’s algorithm, meaning a new buyer would be forced to rebuild it from scratch. The algorithm tailors video recommendations to each user and is made up of millions of lines of code.
In its ruling earlier this month, the panel of judges from the U.S. Court of Appeals for the District of Columbia Circuit was sympathetic to the U.S. government’s argument that TikTok poses a national security risk as long as the Chinese government can use it to collect data on its 170 million users in the U.S. and covertly manipulate the content those users see on the platform. The appeals court rejected TikTok’s bid for temporary pause on the ban last week.
Alan Morrison, an associate dean at George Washington University Law School, expects the Supreme Court to take up the case, but said TikTok is likely to face similar skepticism over its claims that the law violates the First Amendment. Morrison said an argument centered on a constitutional provision that prohibits “bills of attainder” could be more persuasive. A bill of attainder is legislation that punishes or targets a specific party without first going to trial.
“The bill of attainder was a much stronger claim than the First Amendment,” said Morrison, who teaches constitutional law. “Congress has decided what the new standard of the law is. It’s decided who the defendant is — TikTok — and it’s essentially adjudicated their guilt — guilt in a civil sense, not in a criminal sense — which is the mark of a bill of attainder.”
During oral arguments before the appeals panel in September, Judge Douglas Ginsburg pushed back on the notion that the law singles out TikTok, although it and ByteDance were the only companies named in the legislation. Ginsburg said the law “describes a category of companies, all of which are owned by or controlled by adversary powers and subjects one company to an immediate necessity.” He noted that TikTok and the government have been engaged in unsuccessful negotiations for years to try to find a solution to the national security concerns and it’s “the only company that sits in that situation.”
“Maybe the Supreme Court will think differently,” Morrison said.
Trump and app stores could refuse to enforce a ban
Sarah Kreps, the director of the Tech Policy Institute at Cornell University, said the incoming Trump administration could play a role in whether TikTok is banned.
President-elect Donald Trump, who tried to ban the app with an executive order during his first term that was struck down in the courts, vowed this year to “save” it. On Monday, Trump touted TikTok as playing a role in helping him with the youth vote and winning the 2024 election. He told reporters that he would “take a look at TikTok” when asked how he planned to stop the ban.
“I have a warm spot in my heart for TikTok,” he said. The same day, Trump met with TikTok’s CEO Shou Chew at his Mar-a-Lago estate, sources familiar with the meeting told CBS News.
Kreps said Trump has several options once he takes office on Jan. 20, the day after the law goes into effect.
“If [Trump] wants to save TikTok, he could ask Congress to repeal the ban. I don’t think that’s going to happen. He could ask the [Justice Department] not to enforce the law and signal to Apple and Google that they wouldn’t be prosecuted. I don’t think that’s going to happen either,” Kreps said. Android and iPhone users depend on the Google Play and Apple App Store to download apps, giving the tech giants a role in carrying out the ban.
“But what I think could happen is, all of these compliance issues take resources, so he could just simply not provide the resources to enforce the ban,” Kreps said. “I think there are ways bureaucratically he could try to massage this so that he’s not overturning the ban, but he’s also not strictly enforcing it.”
Trump also has the authority to issue a 90-day delay of the law once he’s in office, although that move requires the president to certify to Congress that “evidence of significant progress” toward a divestiture has taken place.
A provision in the law that gives the president the power to determine whether an app is no longer controlled by a foreign adversary presents another potential workaround, according to Erik Stallman, a clinical professor of law at the University of California, Berkeley. The law says the president determines when the divestiture requirements are met, although it stipulates that the determination has to happen through an interagency process.
“Trump can say that he’s satisfied that this U.S.-based entity that they’ve set up is sufficiently distinct from ByteDance to no longer require a divestiture,” Stallman said.
During its back and forth with the U.S. government over the years, TikTok created a U.S.-based subsidiary, TikTok U.S. Data Security Inc., to limit ByteDance’s access to user data. The move was meant to alleviate national security concerns about user data and the Chinese government’s access. It also gave responsibility to Oracle, a U.S. company, to store and protect U.S. user data. Lawmakers, however, viewed those protections as insufficient, and passed the law requiring its sale anyway.
Even if the law isn’t enforced by the Trump administration, Apple and Google could decide that it’s not worth the risk to host TikTok in their app stores. Both companies are already involved in litigation with the Justice Department involving other matters. The TikTok legislation imposes hefty fines on companies found to be in violation, and Trump or his eventual successor could change their minds on enforcement.
“I think they want to be above board on the things that they have some clear-cut control over and this would be one of them,” Kreps said of Apple and Google.
Google declined to comment on its plans. Apple did not return a request for comment.
On Friday, the leaders of the House China Committee sent letters to Apple and Google telling them to be ready to remove TikTok from their app stores by Jan. 19. Though TikTok won’t disappear from users’ phones, app updates would no longer be available and those who don’t already have TikTok would not be able to download it.
Kreps expects TikTok users to migrate to other apps like Instagram and YouTube in the coming weeks if they haven’t already. TikTok estimated that even a one-month shutdown would result in the platform losing a third of its daily users in the U.S.
“Every next step where they’re blocked makes this more of a self-fulfilling prophecy,” Kreps said. “The more people start to migrate, the more this ban has its intended effect, which is to move people elsewhere. But also as people move elsewhere, the impact of a ban actually is mitigated also.”
