WASHINGTON — Even if President-elect Donald Trump offers assurances, companies like Apple, Google and Oracle would risk huge financial penalties by not complying with the TikTok ban that takes effect Sunday.
The law, which the Supreme Court approved on Friday, requires TikTok’s Chinese parent company, ByteDance, to sell TikTok’s US assets if the app wants to continue operating in the US. Congress passed the law out of concern that TikTok’s ownership structure could allow the Chinese government to obtain sensitive personal information about Americans and manipulate the information Americans receive.
Trump, who takes office on Monday, has expressed interest in finding a solution that would keep the popular social media app available in the US while addressing national security concerns.
“My decision on TikTok will be made in the not-too-distant future, but I need time to consider the situation. Stay tuned!” Trump posted on Social Truth on Friday.
Legal experts told USA TODAY that keeping the app up and running on Sunday is a risky move, no matter what Trump promises.
“Companies, Apple, Google, etc., have to fundamentally decide—probably, with their CEOs, with their boards—whether they want to take that risk in breaking the law, regardless of the assurances of President Trump,” Wayne Unger. a Quinnipiac University law professor, told USA TODAY. “Because his guarantees only go so far.”
Apple, Google and Oracle did not immediately respond to requests for comment on whether they plan to stop offering TikTok-related services once the ban takes effect. A TikTok spokesperson referred USA TODAY to a video statement from TikTok CEO Shou Zi Chew, who suggested the company is hoping Trump will come to its rescue.
“I want to thank President Trump for his commitment to finding a solution that keeps TikTok available in the United States,” Chew said. “Rest assured, we will do everything in our power to ensure our platform thrives.”
How banning TikTok works
The TikTok ban works by pressuring companies to stop helping TikTok operate in the US. This includes companies like Apple and Google that provide app access and updates, as well as companies like Oracle that provide web hosting services.
These companies can be hit with $5,000 in fines for each user they help gain access to TikTok. For Google and Apple, that could mean a $5,000 fine for every user who downloads or updates the app through the companies’ services, and for a company like Oracle, it could mean a $5,000 fine for every user who simply accesses the app by use his services.
Companies like Oracle “would owe a lot of money very quickly, whereas with Apple and Google, the fines would increase more slowly,” Alan Rozenstein, a law professor at the University of Minnesota, told USA TODAY.
“Tiktok would be shut down by everyone else who has to shut them down, basically,” Unger told USA TODAY.
The law authorizes the US attorney general to sue the companies to seek fines for any user over the previous five years — meaning an attorney general could sue even after Trump’s next presidency to collect fines for access of users during his presidency.
The law allows a president to extend the deadline by 90 days, but only if TikTok is moving toward selling its assets in the US and has legally binding agreements to do so.
“This 90-day extension is meant not to stop Tiktok if we’re in the middle of that process, but we’re not in the middle of that process,” Rozenshtein said.
What Trump can prove — and why it might not be enough
CNN and the Washington Post reported Wednesday that Trump was considering issuing an executive order to halt the ban to give him time to negotiate a settlement. The media cited anonymous sources.
However, an executive order — as opposed to a new law — would not actually have the power to stop the law, according to Rozenshtein. The sell-or-ban law was passed by Congress and signed by President Joe Biden in April.
“A presidential proclamation, executive order, Social Truth, Tweet — it doesn’t matter what form it takes. It would have no legal effect,” Rozenshtein told USA TODAY. Executive orders “are just press releases with fancier stationary.”
That doesn’t mean a promise from Trump would necessarily be meaningless, from a legal perspective. If Trump promised companies that he would not enforce the law, and then an attorney general sued the company to impose penalties for the time period covered by Trump’s promise, the company could argue in court that it relied on the promise and thus did not i have to pay
However, whether that argument would work in court is uncertain, according to Rozenshtein.
“The question is, if you’re Apple, ‘Does that give you enough comfort?’ And I just have no idea what the answer is,” he said.
The Justice Department could also simply decide not to enforce the law.
Biden’s deputy attorney general, Lisa Monaco, said in a statement after Friday’s Supreme Court ruling upholding the law that implementing it and ensuring compliance after Sunday “will be a process that unfolds over time.”
Trump’s attorney general nominee Pam Bondi declined to say whether she would implement the ban at her confirmation hearing on Wednesday.
But given the law’s five-year enforcement window, the Justice Department’s failure to enforce the law today may be cold comfort.
Justin Hurwitz, a senior fellow at the University of Pennsylvania law school, told USA TODAY in an email that it is “highly unlikely” that Apple and Google would take the risk of non-compliance given the heavy penalties that could follow.
“In reality, there is very little that President Trump can do on his own to prevent the law from going into effect,” Hurwitz said.
Would the TikTok ban be permanent?
Even if TikTok goes dark after Sunday, it could come back to life very soon. The sell-or-hold law allows the restrictions to be lifted once there is a qualified sale, and US Attorney General Elizabeth Prelogar predicted earlier this month that something like that could happen.
“I think Congress expected that we might see something like a game of chicken — ByteDance saying we can’t do it, China will never let us do it,” Prelogar said while defending the law in court arguments in high on January 10.
“But when push comes to shove and these restrictions go into effect, I think it’s going to fundamentally change the landscape in terms of what ByteDance is willing to consider, and it may just be the shock that Congress expected the company to get.” “he had to move forward with the sale process,” she said.
