Topline
A federal court is expected to rule Friday whether to uphold the federal ban on TikTok, as both sides have asked for a ruling by then before the law is scheduled to take effect in January—though Donald Trump’s election has further complicated the ban’s fate.
Key Facts
The U.S. Court of Appeals for the D.C. Circuit is now deliberating on TikTok’s lawsuit against the federal government, which seeks to strike down the law forcing TikTok to divest from Chinese parent company ByteDance or else be banned from U.S. app stores.
TikTok argues the ban infringes on the company’s First Amendment rights, and the case has been combined with a separate lawsuit brought by TikTok creators.
The company argues the law’s requirement that it divest from ByteDance is “not possible technologically, commercially, or legally,” particularly within the “arbitrary” timeline, and TikTok alleged that if it did divest, the company would be “reduced to a shell of its former self.”
The Justice Department has maintained that banning TikTok is necessary due to ByteDance’s Chinese ownership, claiming that keeping access to the app “creates a national-security threat of immense depth and scale,” though the specific evidence for why it poses a threat is all redacted in court filings.
Both sides have asked the court to rule by Friday so there will be time to pursue any next steps or appeals before the ban is slated to take effect on January 19.
Is It Likely The Court Will Rule Against Tiktok?
It’s still unclear which way the lawsuit will go, though the court suggested during oral arguments in September they had some issues with TikTok’s argument. Judges questioned why the legislation banning TikTok is any different from other policies, like one banning foreign ownership of broadcasting licenses, also expressing skepticism at TikTok’s view the government couldn’t ban a company even if the U.S. was “at war” with the country controlling it. They did also seem to take the First Amendment arguments in favor of keeping the ban in place into account, however. Chief Judge Sri Srinivasan, an Obama appointee, noted creators who use TikTok do so knowing its algorithm is curated overseas and want to have access to it anyway, and denying them that access raises “serious First Amendment scrutiny.” Former DOJ official Alan Rozenshtein predicted the court will still rule against the app, however, telling Insider in September he believed the case “is pretty in the bag for the government” based on oral arguments.
What Happens To Tiktok If The Ban Is Upheld?
If the court rules Friday as requested and upholds the TikTok ban, the company will still have some time to quickly appeal the case to the Supreme Court and leave it up to the justices to decide before January 19. They could also stop the ban from taking effect while the litigation moves forward, which would keep TikTok safe until there’s a final ruling. Should the Supreme Court also rule against TikTok and leave the ban in place, it’s unclear what that will look like in practice. The legislation doesn’t require TikTok to immediately shut down its U.S. operations, but calls for the app to be removed from Google and Apple’s app stores, meaning users could not download the app if they didn’t already have it or download any software updates to TikTok. It also bars internet service providers from enabling TikTok’s “distribution, maintenance, or updating,” meaning Oracle, which handles TikTok’s U.S. user data, could stop supporting the app and shut down its U.S. operations more speedily. It’s still unclear how other aspects of TikTok’s U.S. operations, like processing TikTok Shop orders or the company paying U.S.-based creators, would function after the ban takes effect.
How Will Trump’s Election Affect Tiktok Ban?
Despite trying to ban TikTok during his first term, Trump has since become opposed to that, as the ex-president’s supporters have boosted him on the platform and billionaire ByteDance investor and GOP megadonor Jeff Yass has lobbied against the ban. The Washington Post reported after Trump’s election that the president-elect is expected to try and “halt” the ban when he takes office, though it’s still unclear what route he will take and how successful it would be. Rozenshtein wrote in an op-ed for Lawfare that Trump’s options are likely between lobbying Congress to repeal the ban—which is unlikely, given the legislation’s bipartisan support—direct his Justice Department not to enforce the ban, or just proclaim that TikTok is now in compliance with the law, whether it fully divests from ByteDance or not. The latter option is most likely, Rozenshtein predicted, as Apple, Google and Oracle are unlikely to leave TikTok up on their networks believing Trump won’t prosecute them, given the president-elect’s unpredictable nature. If Trump just decides to declare TikTok is compliant whether it actually is or not, however, that could still leave open the possibility that parties could challenge that proclamation in court and get the app banned.
Big Number
More than 170 million. That’s how many in the U.S. use TikTok, according to the company, approximately half of the country’s total population.
Surprising Fact
Public support for banning TikTok has cratered, with a Pew Research poll finding only 32% of U.S. adults supported outlawing the app as of July and August, down from 50% who backed a ban in March 2023.
Key Background
President Joe Biden signed the bill targeting TikTok into law in April. The move followed increasing governmental measures cracking down on the app due to its Chinese ties, with Biden signing a law banning the app from government devices in 2022, even as the president’s campaign has continued using the app. Montana also became the first state to outlaw TikTok in May 2023, and other countries have similarly targeted the app over its Chinese ties, with Canada dissolving TikTok’s Canadian business in November but still keeping the app active for the country’s users. TikTok’s lawsuit challenging the U.S. ban comes as courts have previously been unwilling to revoke access to the social media network, with a federal judge blocking Montana’s ban before it could take effect and multiple judges ruling against Trump when he tried to prohibit the app during his first term. Though the federal government has never released any specific intelligence about the threat TikTok poses to the U.S., Forbes has reported on numerous concerns involving the company, including TikTok spying on journalists, tracking “sensitive” words, promoting Chinese propaganda criticizing U.S. politicians and mishandling user data. TikTok has denied wrongdoing or blamed actions on individual bad actors within the company, and has denied having any links to the Chinese government.
