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UPDATED with TikTok response: TikTok’s CEO has responded to a Supreme Court ruling today that paves the way for the app to be banned on Sunday, thanking the incoming president. “On behalf of everyone at Tiktok and all our users across the country, I want to thank President Trump for his commitment to work with us to find a solution that keeps Tiktok available in the United States,” said chief executive Shou Chew in a video posted to the platform.
“As you know, we have been fighting to protect the constitutional right of free speech for the more than 170 million Americans who use our platform every day to connect, create, discover and achieve their dreams,” he said.
PREVIOUSLY: After years on the brink, TikTok’s clock has run out as the U.S. Supreme Court on Friday upheld a lower court ruling that the app owned by China’s ByteDance must sell itself or be banned in the U.S. on January 19 due to national security concerns.
A sale is not imminent, but the reality of a ban Sunday is also complicated. The Biden administration said today that it will leave enforcement of the law to the incoming Trump administration. “Given the sheer fact of timing, the administration recognizes that actions to implement the law simply must fall to the next administration, which takes office on Monday,” it said.
“President Biden’s position on TikTok has been clear for months, including since Congress sent a bill in overwhelming, bipartisan fashion to the president’s desk: TikTok should remain available to Americans, but simply under American ownership or other ownership that addresses national security concerns identified by Congress in developing this law,” read the statement by White House Press Secretary Karine Jean Pierre after the Supreme Court opinion came down.
Donald Trump has said he does not want TikTok banned. “It ultimately goes up to me, so you’re going to see what I’m going to do,” he told CNN.
“There is no doubt that, for more than 170 million Americans, TikTok offers a distinctive and expansive outlet for expression, means of engagement, and source of community,” the justices wrote in an unsigned opinion. “But Congress has determined that divestiture is necessary to address its well-supported national security concerns regarding TikTok’s data collection practices and relationship with a foreign adversary. For the foregoing reasons, we conclude that the challenged provisions do not violate petitioners’ First Amendment rights.”
Read the Supreme Court’s full TikTok opinion here.
Justice Sonia Sotomayor wrote an opinion concurring in part and concurring in the judgment; Justice Neil Gorsuch wrote an opinion concurring in the judgment.
The ban would take effect under a new bipartisan law, the Protecting Americans from Foreign Controlled Applications Act, signed by President Joe Biden last year.
When the law goes into effect, the onus will not be on TikTok but rather on app stores to stop making the social media platform available to users. Presumably, those who already have the app installed would be able to continue to use it, but they would not be able to receive routine updates, something that eventually would make it unworkable. The Information reported that TikTok was preparing to go dark in the U.S. on Sunday, a move that would send a message to users of the impact of the law. But it may also wait to see what Trump proposes.
Trump tried to force a sale or ban of TikTok in his first term but now looks favorably on the platform and opposes the new law, even though it passed with huge majorities of Republicans and Democrats. He cannot stop the law, short of new congressional legislation, but he could ask the Justice Department not to enforce it. There were reports that he is considering an executive order to suspend enforcement for 60 to 90 days. TikTok CEO Shou Zi Chew met with Trump at Mar-a-Lago and plans to attend his inauguration.
Trump wrote on Truth Social this morning that he spoke with China’s president Xi Jinping, and TikTok was among the items discussed.
The law allows a one-time extension of no more than 90 days if the President makes certain certifications to Congress regarding progress toward a qualified divestiture — meaning a sale the President deems would result in TikTok “no longer being controlled by a foreign adversary.”
The popular app with 170 million U.S. subscribers is a staple of the massive creator economy, which will now be thrown into turmoil, as well as a potent advertising tool and a cultural phenomenon.
Trump’s original efforts to force a sale, via an executive order, were sidelined in the courts. Microsoft emerged as a bidder back then, as did Oracle and a consortium of U.S investors. That attempt fizzled. TikTok had been migrating information on its U.S. users to Oracle servers but failed to convince Congress that was enough.
Potential suitors this time around include the Frank McCourt-founded Internet advocacy group Project Liberty that submitted a formal bid with partners including Shark Tank’s Kevin O’Leary to buy TikTok without its current algorithm and “preserve the platform’s vibrant community, while also giving 170 million American TikTokers the ability to control, protect, and benefit from their data.”
TikTok denied reports that China was considering options, including having ByteDance selling TikTok to X owner Elon Musk.
One issue is TikTok’s algorithim, which is what makes it so appealing. The Chinese government would have to approve that sale and is unlikely to do so.
The ban is aimed at U.S. app stores like Apple and Google, making TikTok impossible for new users to download. It will keep working for a bit for users that have it already installed but ByteDance won’t be able issue updates, eventually rendering it just a shell.
A ban would be great news for rivals led by Google’s YouTube Shorts and Meta’s Instagram Reels. Many users have been posting on all three. They have also been mobbing a smaller Chinese app called RedNote in protest.
The law applies specifically to ByteDance, TikTok and all related companies. Action against any others would be at the discretion of the president.
During oral arguments, TikTok’s attorney Noel Francisco told the justices that short of a pause on the law, TikTok would go dark in the U.S. on Sunday. He said that the law was an infringement on the company’s First Amendment free speech rights, as well as that of its creators.
The justices disagreed, affirming that “The challenged provisions are facially content neutral. They impose TikTok-specific prohibitions due to a foreign adversary’s control over the platform and make divestiture a prerequisite for the platform’s continued operation in the United States. They do not target particular speech based upon its content.”
“The Act’s prohibitions and divestiture requirement are designed to prevent China—a designated foreign adversary—from leveraging its control over ByteDance Ltd. to capture the personal data of U. S. TikTok users. This objective qualifies as an important Government interest under intermediate scrutiny. In addition to the data collection concerns addressed above, the Government asserts an interest in preventing a foreign adversary from having control over the recommendation algorithm that runs a widely used U. S. communications platform, and from being able to wield that control to alter the content on the platform in an undetectable manner.”
The government’s lawyer, U.S. Solicitor General Elizabeth Prelogar, noted longstanding foreign ownership restrictions on U.S. broadcast television assets and said there’s no reason they shouldn’t also apply to social media.
Nor is there an inherent impossibility in selling a social media company, she added. Musk acquired Twitter in six months, she said, and ByteDance “has been on notice since 2020.”
She said the Chinese company has been engaged in a game of chicken and a forced shutdown might be what’s needed for it to take the sale mandate seriously.
A ban also would only be temporary until a sale. Nothing is “irrevocable” said Prelogar at the Supreme Court.
