TikTok's future in jeopardy as US ban looms

TikTok’s future in the U.S. is in serious jeopardy after a federal appeals court rejected its push to overturn a law that could ban the app next month.

The popular social media app’s fate now rests in the hands of the Supreme Court and the incoming Trump administration, which has offered tepid support at-best for TikTok in the wake of the election.

“TikTok is in an increasingly desperate situation,” Sarah Kreps, director of the Tech Policy Institute at Cornell University, said in a statement.

“There's a reason the law stipulated that the ban would take effect the day before the new administration is inaugurated and a new Congress begins,” she added. “No one wanted to relitigate this with a new set of political actors, but TikTok thinks that's its best hope.”

The app sought to put the clock on hold Monday, asking the U.S. Court of Appeals for the D.C. Circuit to temporarily block the law from going into effect Jan. 19 as it prepares to appeal to the Supreme Court.

TikTok noted the current deadline would cut off access for its 170 million U.S. users “on the eve of a presidential inauguration.”

“Before that happens, the Supreme Court should have an opportunity, as the only court with appellate jurisdiction over this action, to decide whether to review this exceptionally important case,” it wrote in Monday’s filing.

“And an injunction is especially appropriate because it will give the incoming Administration time to determine its position—which could moot both the impending harms and the need for Supreme Court review,” it continued.

TikTok also said that the app generates billions of dollars for the U.S. economy through its operations and the "advertising, marketing, and organic reach" on the platform.

It seems unlikely that the appeals court will enjoin its decision, said Wayne Unger, a law professor at Quinnipiac University.

A three-judge panel with the D.C. Circuit ruled in a unanimous decision Friday that the divest-or-ban law did not violate the First Amendment, as TikTok argued.

The court found that the government’s national security concerns about TikTok’s China-based parent company, as well as its years-long effort to explore alternative solutions, justified the potential intrusion on free speech.

“I would expect the D.C. circuit to say, ‘Nope we're not enjoining it because the national security concerns are legitimate, are well-founded, and if we enjoin, then we just allow those national security concerns or injuries to the United States to perpetuate,” Unger told The Hill.

If TikTok’s request is denied, it still can turn to the Supreme Court. It has asked the appeals court to make a decision by Monday, so it has time to file a motion with the high court to block the law from taking effect Jan. 19.

Owen Tedford, a senior research analyst with Beacon Policy Advisors, said he doesn’t expect the ban to go into effect next month if the Supreme Court takes up the case.

“I can easily see the Supreme Court granting the injunction instead,” Tedford said. “I don't see a scenario where Jan. 19 comes, the app shuts down, but they're still having a case coming in front of the Supreme Court.”

“I don't think the Jan. 19 deadline, anymore, is very real unless the Supreme Court for some reason decides to not take up the case,” he added.

The high court seems poised to take up the case given that it presents a “pretty substantial First Amendment issue,” Unger noted.

“It's novel in the sense that we have never banned an entire app from this country, let alone under a constitutional challenge, and so almost certainly the Supreme Court will want the last word on this,” he said.

TikTok appeared confident in its chances at the Supreme Court in a statement Friday, noting the court has "an established historical record of protecting Americans' right to free speech, and we expect they will do just that on this important constitutional issue."

However, Tedford cautioned that it may face an "uphill battle."

“I think the unanimous nature of the appeals court decision is somewhat telling,” he said. “I think it's fair to take TikTok might be facing an uphill battle here, but that doesn't mean it's an unwinnable battle.”

Notably, the three judges who heard the case in the D.C. Circuit were a mix of Republican and Democratic appointees. Judge Douglas Ginsburg, who authored Friday’s opinion, was appointed by former President Reagan.

His colleagues, judges Sri Srinivasan and Neomi Rao, were appointed by former President Obama and President-elect Trump, respectively.

Kreps also noted that several of the justices seem “very deferential toward executive power” and would likely not favor overturning the law.

"The courts tend not to want to weigh in on these matters of national security, and I think every step, every decision and piece of legislation and president signing it into law that takes place makes it less and less likely that the court is going to actually turn this around,” she told The Hill.

The law was passed by large bipartisan majorities in both chambers of Congress and quickly signed by President Biden in April. It gave TikTok’s parent company ByteDance about nine months to sell the app or face a ban on U.S. networks and app stores.

However, the government’s national security concerns about TikTok began long before this year. Federal officials began investigating the app in 2019, and then-President Trump sought to force a divestiture via executive order in 2020.

Despite Trump’s history with TikTok, he may be one of the app’s best chances at a reprieve as he prepares to take office again.

Trump campaigned on his promise to “save TikTok” and argued that shutting down the app would benefit other platforms, like Facebook, which has faced Trump’s ire since banning him in the wake of the Jan. 6, 2021, Capitol riot.

Following last month’s election, the president-elect has offered few details about his plans for TikTok. When asked about the app on NBC’s “Meet the Press” on Sunday, Trump emphasized that it was very helpful in boosting his campaign.

“I can’t totally hate it. It was very effective,” he said. “But I will say this, if you do do that, something else is going to come along and take its place, and maybe that’s not fair.”

However, Trump was noncommittal when pushed on whether he would take steps to protect TikTok, saying, “I’m going to try and make it so that other companies don’t become an even bigger monopoly.”

If the president-elect opts to “save” TikTok, there are several courses of action he could pursue, experts said.

Trump’s Department of Justice could choose not to defend the law if the case goes before the Supreme Court after his inauguration, Unger said. For example, during the Obama administration, the government declined to defend the Defense of Marriage Act.

However, the case still would go forward in this scenario because the court would appoint a special master to argue the case in place of the government, Unger explained.

The Trump administration also could take advantage of some of the flexibility afforded by the law’s definition of “qualified divestiture,” Tedford suggested.

“There's a lot of leeway under the law because if you look at the definitions of what constitutes a qualified divestiture, a lot of it is basically up to the president's discretion,” Tedford said.

This could consist of a plan similar to Project Texas with some adjustments, he said. Project Texas, a TikTok initiative that sought to assuage government concerns about data security, created a U.S. subsidiary to handle American user data and established a secure environment for TikTok’s U.S. services within Oracle’s cloud.

Trump could also choose to deprioritize enforcement, like the government has done with federal marijuana laws, Kreps said.

However, the private companies mandated to block TikTok, such as app store owners Apple and Google, could comply out of concern about running afoul of the law and facing litigation, Tedford noted.

Still, Trump ultimately could decide not to do anything for TikTok.

“I think increasingly what I'm seeing happen — and why I think that Trump may just decide not to do anything, which would mean this ban does not get overturned — is that these content creators seem to be seeing the writing on the wall and starting to hedge and look at their alternatives,” Kreps said.

“There's a real market for this,” she added. “When there's both a supply and a demand for a certain good, it will find a market, and I think that market is slowly migrating to other platforms. And I think if that becomes as that becomes more and more the case, the salience of this issue politically will also diminish”

Topics

TikTok's Future in the US Is Unclear. We Check Back in With the Billionaire Who Wants to Save It

Former Los Angeles Dodgers owner Frank McCourt has been talking about buying TikTok since earlier this year. The long shot is getting shorter.
Wired - 1h
How TikTok Hopes to Run Out the Clock on a Looming Legal Ban

After its appeal was defeated last week, the social media platform seeks to delay enforcement of a federally ordered U.S. shutdown in hopes Donald Trump or the Supreme Court will overturn the law.
Inc. - 1d
TikTok asks for emergency pause to looming US ban

The app says the Supreme Court - and incoming Trump administration - needs more time to consider the case.
BBC News - 2d
Federal appeals court upholds law requiring sale or ban of TikTok in the US

A federal appeals court panel on Friday unanimously upheld a law that could lead to a ban on TikTok as soon as next month, handing a resounding defeat to the popular social media platform as it ...
ABC News - 5d
TikTok is inching closer to a potential ban in the US. So what's next?

TikTok’s future in the U.S. appeared uncertain on Friday after a federal appeals court rejected a legal challenge the company brought against a law that requires it to cut ties with its China-based ...
ABC News - 5d
TikTok set to be banned in the US after losing appeal

The app - which faces being banned in a matter of weeks - says it will now take its case to the Supreme Court.
BBC News - 5d
US court upholds law that could ban TikTok

Further appeal expected for bipartisan measure targeting video app owned by China’s ByteDance over security concerns
Financial Times - 5d
US appeals court upholds law forcing sale or ban of TikTok

Decision is latest twist in a years-long battle between the social media company and the US government. TikTok is one step closer to facing a ban in the US. A federal appeals court ruled on ...
The Guardian - 5d
The Future of TikTok Is Being Decided This Week

Depending on what a federal appeals court decides, TikTok’s fate might left in the hands of president-elect Donald Trump.
Wired - Dec. 5