Now that TikTok has finally reached the end of its legal options in the US to avoid a ban, somehow its future seems less clear than ever.
The Supreme Court couldn’t be more straightforward: The Protecting Americans from Applications Controlled by Foreign Adversaries Act, as it applies to TikTok, withstands First Amendment scrutiny and could take effect on January 19. The court agreed that the government had a compelling national security interest in enacting the law and that its reasoning was content-neutral. The proposed solution — forcing Chinese parent company ByteDance to divest TikTok or see it kicked out of the U.S. — was tailor-made to meet those goals.
However, the government’s response hardly looks like a victory lap. In fact, despite still being under ByteDance’s control, it’s not clear that anyone in the US government will act as if TikTok is banned on the 19th.
“TikTok should remain available to Americans, but only under American ownership or other ownership that addresses national security concerns identified by Congress in developing this law,” White House press secretary Karine Jean-Pierre said in a statement. after the decision of the Supreme Court today. “Given the stark fact of the times, this administration recognizes that enforcement action should simply be left to the next administration, which takes office on Monday.” In other words, President-elect Donald Trump will take the TikTok ban into his lap and enforcement will be up to him.
The government’s response hardly looks like a victory lap
Justice Department officials released their own confusing statements after the ruling. Attorney General Merrick Garland praised the Supreme Court for allowing the Justice Department to “prevent the Chinese government from weaponizing TikTok to undermine America’s national security.” But Deputy Attorney General Lisa Monaco said, “The next phase of this effort — implementing and ensuring compliance with the law after it goes into effect on Jan. 19 — will be a process that develops over time.”
Trump, who at one point promised to “save” TikTok (albeit with few details), said before Friday’s decision that he had a “very good” phone call with Chinese President Xi Jinping, including discussions about the application. After the verdict was overturned, he wrote in Social Truth, “The decision of the Supreme Court was expected and everyone should respect it. My decision on TikTok will be made in the not-too-distant future, but I need time to review the situation.” Not exactly a very strong promise.
A string of articles this week suggested that Chinese officials are at least beginning to entertain the idea of selling the app, and are even said to be floating the idea of recruiting Elon Musk to buy it or help broker a deal. But those reports were based on unnamed officials, and so far, we’ve heard nothing from the Chinese government or ByteDance to suggest they’re taking serious steps toward a sale.
Meanwhile, app stores and service providers — who have apparently been banned from supporting TikTok starting Sunday — have been tight-lipped about their plans. Apple and Google, whose app stores support TikTok, and Oracle, which hosts its data in the US, did not respond to requests for comment from threshold. In his first statement since the decision, TikTok CEO Shou Zi Chew gave no information on how TikTok would handle Sunday’s deadline and instead chose to flatter Trump.
TikTok is said to have planned to go dark on Sunday if the law goes into effect, regardless of the actions other companies take. So in the end, the only party still committed to TikTok’s ban deadline may turn out to be TikTok itself.
Whatever TikTok plans, at this point, there are only a few options left:
- President Joe Biden could direct the Justice Department not to enforce the law on the final day of his presidency — which his administration has hinted is the path of choice. Trump may do the same once he takes office on Monday. This would leave US companies at risk of fines of up to $5,000 per user who accesses TikTok through their services as the law will still be in place and could eventually be enforced.
- Biden can exercise a 90-day extension built into the law. That could technically only happen if TikTok makes progress toward a settlement, which could leave the government open to legal challenges. However, some Democratic lawmakers have urged Biden to use that power.
- Congress can pass a new law by repealing the original or formally allowing an extension, like the bill Sen. Ed Markey (D-MA) championed this week. But Congress isn’t exactly known for its speed.
- ByteDance could agree to a deal that would put at least 80 percent of TikTok under the control of an opposing non-foreign owner, bringing the app into compliance with the law. But the company and the Chinese government have publicly dismissed the idea of a sale before – and while there are signs they are working behind the scenes, it’s unclear how quickly a deal could be reached.
The US government managed to push through a once implausible policy proposal: banning one of the country’s most popular social media services, based in part on national security concerns that have yet to be revealed. But lawmakers and the White House have always maintained that their goal was to force the sale of TikTok to a non-Chinese owner. Instead, the company remained laser-focused on exhausting its legal options — apparently not even engaging much with potential buyers like billionaire Frank McCourt’s Liberty Project. It remains unclear whether China will be willing to allow ByteDance to make a sale.
After more than four years of pushing for a sale or ban on TikTok, the US government finally got what it asked for, but not what it wanted. And in this game of geopolitical chicken, TikTok — whether it likes it or not — seems to have won for now.
