Millions of Americans will have to be blocked from posting on TikTok unless there is a last-minute intervention in the coming days.
TikTok could be banned in the United States unless its China-based parent company, ByteDance, sells it to a U.S.-based company by January 19.
The sell-or-ban proposition was enacted as part of legislation passed By Congres with bipartisan support in April. Now, the constitutionality of that law is being disputed at the Supreme Court and it seems justices are prepared to move in lockstep with Congress.
If there is no sale, the ban will be enforced – despite the app having 170 million monthly U.S. users.
Here’s how TikTok can avoid a full ban in the United States:
President-elect Donald Trump refuses to enforce the ban
Despite once advocating for the TikTok ban, Trump has said he wants to “save” the popular social media app and has asked the Supreme Court to delay the law’s enforcement so he can work out a deal himself.
“If the Supreme Court comes out with a ruling in favor of the law, President Trump has been very clear: Number one, TikTok is a great platform that many Americans use and has been great for his campaign and getting his message out. But number two, he’s going to protect their data,” Trump’s pick for national security adviser Mike Waltz told ABC.
Trump has privately floated the idea of refusing to enforce the ban when he assumes office on January 20 through an executive order. But that is one day after the ban is supposed to take place meaning he must rely on the Supreme Court or Congress to push enforcement until he is sworn in.
“He’s a deal maker. I don’t want to get ahead of our executive orders, but we’re going to create this space to put that deal in place,” Waltz added.
While it is an idea, it’s unclear if the president-elect could successfully forego enforcement because he would be overriding Congress’s decision to enact the legislation. He could, however, lower the urgency of enforcement.
A lawyer for Trump filed a brief with the Supreme Court saying Trump “opposes banning TikTok” and is looking to find solutions “through political means”. The president-elect met with TikTok boss Shou Zi Chew in December.
TikTok may get 270 day extension
TikTok could get some relief if Congress passes a new bill extending its January 19 deadline.
Massachussets Senator Ed Markey said on Monday that he plans to introduce the Extend the TikTok Deadline Act, which would give the company an extra 270 days to divest from ByteDance.
The bill would not overturn the initial legislation but could give TikTok more time to make a deal or buy Trump some time to find a solution.
Can Congress repeal ban?
Congress could repeal the ban with legislation that passes in both the Senate and the House, but they would only have a matter of days to do so to prevent the ban from taking place.
Congress voted in favour of the ban only nine months ago. In the House of Representatives, the ban passed by an overwhelming margin of 352-65.
They could also do so after Trump takes office in January since both chambers will be Republican majority.
Still, the prospect of repeal is unlikely, Lewis said, pointing to bipartisan support for the ban as well as other issues that appear to be a higher priority for Trump.
“This has been a game of chicken all along,” said James Lewis, a data security expert at the Center for Strategic and International Studies.
“Congress can always change its mind, but I don’t think it’ll do it,” Lewis said. “If you were Trump, why would you spend your political capital to save TikTok?”
TikTok severs ties with Bytedance
ByteDance has previously said it will not sell the short-form video platform, but some investors have been eyeing it, including Trump’s former treasury secretary Steven Mnuchin and billionaire businessman Frank McCourt.
TikTok has already called reports it could sell its US business to X owner Elon Musk “pure fiction”.
The law allows for a 90-day extension of the deadline for a TikTok sale, as long as the company is advancing toward an agreement. That would need to be approved by President Joe Biden.
Sarah Kreps, the director of the Tech Policy Institute at Cornell University, told ABC News: “It would be very difficult to disentangle the two companies.”
“A motivated actor like Trump might say, ‘We think this is fine’,” she added.
Supreme Court moves to delay ban
The highest court in the United States could issue a temporary injunction before Sunday to uphold the law while preventing the ban from taking effect.
Trump has asked the court for this exact scenario but the government argued that a temporary injunction is not necessary unless justices thought TikTok had a chance of winning their case.
But legal experts have warned an injunction it’s unlikely this would occur.
“The longer the court waits to issue an injunction, the less likely it is that the injunction will come,” Saurabh Vishnubhakat, a professor at the Cardozo School of Law who studies tech-related issues said.
Will sideloading be an option?
Initially, it was believed that with a ban on Sunday, TikTok would be removed from Google’s Play Store and Apple’s App Store.
While it was thought sideloading, or downloading the app from other online sources, would offer users a way to skirt the ban, it now appears the app may become completely nonfunctional in the US altogether.
A TikTok attorney explained last week that the act means “all of the other types of service providers can’t provide service either.”
“So essentially, what they’re going to say is that I think, ‘we’re not going to be providing the services necessary to have you see it.’ So it’s essentially going to stop operating. I think that’s the consequence of this law,” the attorney told CNN.
Ariana Baio contributed to this report.
