WASHINGTON — TikTok’s fate in the U.S. appears to be in limbo after a federal appeals court rejected an appeal to postpone the law The widely popular app will be banned unless it cuts ties with its Chinese parent company ByteDance.
The law, which takes effect on January 19, gives ByteDance nine months to sell TikTok. If no sale occurs, the app will be disconnected from U.S. app stores and web hosting services. The law also authorizes the president to grant a 90-day delay if a sale is in progress.
Experts say TikTok has several paths to avoid a ban, most notably through Supreme Court intervention or the incoming Trump administration refusing to enforce the ban. Other options, such as a last-minute sale or Congress deciding to repeal the law, seem less likely.
TikTok goes to the Supreme Court
Monday is TikTok asked the Supreme Court to suspend the lawasserting the decision of the Court of Appeals support it It was “completely contrary to the First Amendment.”
“If this law is allowed to take effect in January 2025…this court will lose its ability to grant meaningful relief to petitioners,” lawyers for TikTok and ByteDance wrote. There is. “Even if TikTok is temporarily shut down, it will cause permanent harm to Applicants (a representative group of Americans who use TikTok to talk, interact, and listen) and the general public.” It will happen.”
Al Drago/Bloomberg via Getty Images
The Supreme Court granted an injunction temporarily blocking the law while TikTok’s appeal progresses, potentially preserving the app for the time being.
Once TikTok formally requests a hearing, a judge will also have to decide whether to proceed. If they refuse, the appeals court’s decision would be the final say on the issue, and the ban would go into effect absent presidential intervention. If the High Court litigates, an injunction would almost certainly apply, thus barring a stay, until a judge hears and decides the dispute. That process will likely take several months.
TikTok has asked a judge to issue an injunction by Jan. 6 to allow it to “work with service providers to accomplish the complex task of shutting down the TikTok platform solely in the United States” if the judge refuses. I asked.
The company said a sale was not an option at this time and that a lengthy legal battle would be needed to buy time for the Supreme Court to consider the agreement. The Chinese government opposes the sale of TikTok’s algorithm, so any new buyer would have to rebuild it from scratch. This algorithm recommends videos for each user and consists of millions of lines of code.
In a ruling earlier this month, a panel of judges from the U.S. Court of Appeals for the District of Columbia Circuit was sympathetic to the U.S. government’s argument that TikTok poses a national security risk to the extent that the Chinese government can use it to collect data. Ta. It attacks 170 million users in the United States and secretly manipulates the content they see on the platform. An appeals court last week rejected TikTok’s request to suspend the ban.
Alan Morrison, associate dean of the George Washington University School of Law, said he expects the Supreme Court to take up the case, but the company’s argument that the law violates the First Amendment In contrast, he said TikTok is likely to face similar skepticism. Prime Minister Scott Morrison said arguments centered around the constitutional ban on “achievement legislation” could be more persuasive. Accomplishment bills are laws that punish or target specific parties without first going to trial.
“The Achievement Act was a much stronger argument than the First Amendment,” said Morrison, who teaches constitutional law. “Congress has decided what the standard for the new law is. TikTok decides who the defendant is and basically their guilt is adjudicated. Not in the criminal sense, but in the civil sense. This is the mark of the Accomplishment Act.” ”
In oral arguments before the appellate panel in September, Justice Douglas Ginsburg said the law single-handedly singles out TikTok, even though TikTok and ByteDance are the only companies named in the law. I pushed back the thought. Ginsburg said the law “defines a category of corporations, all of which are owned or controlled by an adversarial force, and which places one corporation in dire need.” He said TikTok and the government have been negotiating unsuccessfully for years to find a solution to national security concerns, and that TikTok is “the only company in that situation.” pointed out.
“Maybe the Supreme Court will think differently,” Prime Minister Scott Morrison said.
President Trump and app stores may refuse to enforce the ban
Sarah Krebs, director of Cornell University’s Institute for High Technology Policy, said the incoming Trump administration could play a role in whether to ban TikTok.
President-elect Donald Trump tried to ban the app by executive order during his first term, but was struck down by a court, and this year he vowed to “save” the app. President Trump on Monday touted TikTok’s role in helping young people vote and winning the 2024 election. “We’ll look at TikTok,” he told reporters when asked how he planned to prevent the ban.
“I have a passion for TikTok in my heart,” he said. On the same day, President Trump Meeting with TikTok CEO Shu Chiu A source familiar with the meeting at the Mar-a-Lago mansion told CBS News.
Kreps said Trump will have several options once he takes office on January 20, the day after the law takes effect.
“If[Trump]wants to save TikTok, he might ask Congress to overturn the ban. I don’t think that will happen. He will ask[the Justice Department]not to enforce the law, and he will ask Congress to overturn the ban. “I don’t think there will be any charges,” Krebs said. Since Android and iPhone users rely on Google Play and Apple App Store to download apps, the role of enforcing the ban has been given to the tech giants.
“But what I think is that these compliance issues take resources, so they may simply not provide the resources to enforce the ban,” Kreps said. “I think there are ways to try to do something about this bureaucratically so that the ban doesn’t get overturned, but he’s also not strictly enforcing it.”
Trump also has the power to delay the law for 90 days after taking office, but that would require the president to show Congress “evidence of significant progress” toward the stock sale.
Eric Stallman, a clinical law professor at the University of California, Berkeley, said a provision in the law that gives the president the authority to decide whether an app is no longer controlled by a foreign adversary suggests another potential workaround. It is said that there is. The law says the president will decide when the divestment requirements are met, but it says the decision must be made through an interagency process.
“I would say that President Trump is satisfied that this U.S.-based entity that they have created is sufficiently distinct from ByteDance that they no longer need to sell it,” Stallman said. Ta.
Over the years, TikTok has been dealing with the U.S. government, creating a U.S.-based subsidiary, TikTok US Data Security Inc., to restrict ByteDance’s access to user data. The move was aimed at alleviating national security concerns about user data and Chinese government access. It also gave the U.S. company Oracle responsibility for storing and protecting U.S. user data. But lawmakers thought those protections were insufficient and passed a law requiring their sale anyway.
Even if this law is not enforced by the Trump administration, Apple and Google may decide it’s not worth the risk of hosting TikTok in their app stores. The companies are already in litigation with the Department of Justice over other issues. The TikTok bill imposes steep fines on companies found in violation, and President Trump or his eventual successor could change his mind on enforcement.
“I think they want to be on top of things that they have clear control over, and this is probably one of them,” Kreps said of Apple and Google.
Google declined to comment on its plans. Apple did not respond to a request for comment.
On Friday, House China Committee leaders sent a letter to Apple and Google telling them to be ready to remove TikTok from their app stores by January 19th. TikTok will not disappear from users’ phones, but they will no longer be able to update the app. If you don’t already have TikTok, you can’t download it.
Kreps expects TikTok users to migrate to other apps like Instagram and YouTube in the coming weeks, if they haven’t already. TikTok estimates that even if it were shut down for a month, the platform would lose a third of its daily users in the US
“Every time they get blocked on the next step, this becomes more of a self-fulfilling prophecy,” Kreps said. “The more people start migrating, the greater the intended effect of this ban in moving people elsewhere. But as people move elsewhere, the impact of the ban actually becomes will be relieved.”
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