While TikTok waits to see if it can delay an upcoming ban in the US, speculation is swirling about what options ByteDance, the app's parent company, might have to survive in one of its largest markets.
A US federal appeals court last week a law passed by Congress that gives China-based ByteDance until January 19 to divest TikTok's assets, or be banned in the US.
The law, which received bipartisan support, is rooted in national security concerns over the fear of user data being compromised by China, although those claims have been consistently disputed by ByteDance. “A modest delay in enforcing the Act will simply create breathing room for the Supreme Court to conduct an orderly review and for the incoming administration to evaluate this matter – before one of this country’s most important speech platforms is shuttered,” read TikTok's injunction request.
“In its public submissions, the government sought to defend the Act based on purported concerns about China manipulating the content Americans see on TikTok or misappropriating their private data … The government repeatedly admitted, however, that it has no evidence that China has ever engaged in such behaviour.”
In response to TikTok's request for an injunction, the US Justice Department on Thursday filed an argument for the circuit court to turn down the request.
"Continued Chinese control of the TikTok application poses a continuing threat to national security, and both Congress and this Court took account of the competing interests of users of the application," the argument read in part.
Mark MacCarthy, a senior fellow at the Institute for Technology Law and Policy at Georgetown Law in Washington, said he believes TikTok's request for a conditional stay will probably be granted, potentially extending the January 19 deadline set by bipartisan legislation.
“I think the Supreme Court will take up the case,” Prof MacCarthy said, noting that the court battle could set a precedent. “It is a compelling conflict between First Amendment jurisprudence and the national security state and the court will want to issue a definitive judgment.”
Ultimately, he believes the Supreme Court will uphold the circuit court's decision. “It will probably give full discretion to the government with a rational national security demand conflicting with the First Amendment,” he explained, before pivoting to his own personal stance on the law that puts TikTok's US future in jeopardy.
“A TikTok ban would be terrible on policy grounds but it should withstand constitutional challenge,” he said, saying that he thinks the law is too rooted in a confrontational US policy towards China which could quickly escalate. Some have also speculated the success of TikTok in the US has caused jealousy due in part to the fact that it wasn't created by a US company, which in turn has fuelled efforts to get the platform banned.
Will Trump save TikTok?
Though he expressed concern about TikTok's China ownership during his first term in the White House, during his 2024 presidential run, Donald Trump changed his mind. He joined the platform and quickly gained 14.7 million followers, consistently using the video-sharing social app to communicate with supporters and provoke detractors. Mr Trump also used his own app, Truth Social, to announce that he wanted to prevent TikTok from being banned in the US.
“For all those who want to save TikTok in America, vote Trump,” he said in a post on his Truth Social platform on September 4. In a video that lasted less than one minute, he said he was “now a big star on TikTok” and added that “we're setting records”, referring to his 14.5 million followers on the platform.
Even as President, however, Mr Trump's path to saving TikTok is narrow. He could try to convince Congress to repeal the law, but it could be risky for him to spend political capital on legislation that received Democratic and Republican support.
What would a ban look like?
Barring any decision from the Supreme Court that would deem the TikTok legislation unconstitutional, or any move from president-elect Trump that would have Congress repeal the law, when January 19 arrives TikTok will probably be removed from iPhone and Android app stores. It will continue to work for most, at least until app updates make it unusable in the US.
It is highly unlikely, although not impossible, that the platform will be blocked overnight. ByteDance has repeatedly said it has no plans to follow the legislation that requires it to sell TikTok's assets to a US entity, but there is a scenario in which it could sell other parts of the app such as the user accounts, while retaining the coveted TikTok algorithm.
Under that sort of arrangement, however, the algorithm which helps fuel TikTok's popularity would remain under ByteDance's control, rendering other assets less valuable. Some US investors and entrepreneurs have pitched the idea of buying TikTok, but nothing has come to fruition, and again, ByteDance says it has no plans to sell.
Palestine Information Office v Shultz
During the initial hearing, in which TikTok's lawyers fought for the platform's survival, circuit court judges brought up a case known as Palestine Information Office v Shultz, which they said provided precedent to force the sale of TikTok. The case of PIO v Shultz stretches back to 1987, when then US secretary of state George Shultz, and ultimately the US State Department, ordered the closure of the Palestine Information Office in Washington DC.
That decision stemmed from a US law passed in 1982 known as the Foreign Missions Act, which led to tighter regulation with regard to foreign missions inside the US. Since the US classified the Palestine Liberation Organisation as a terrorist group, it applied the Foreign Missions Act to the Palestine Information Office as well. The law was challenged, but upheld.
