TikTok has just ten days until it faces a possible ban in the U.S. If the Supreme Court refuses to stop the law by Jan. 19 and TikTok does not spin off from its Chinese parent company ByteDance, companies like Apple and Google They will be forced to stop keeping the app in their app stores or allowing it to send updates.
The app's fate will likely become clearer after Friday, when TikTok and the Justice Department present oral arguments before the Supreme Court on whether the law that could ban TikTok violates the First Amendment. The court declined to stop the clock before oral arguments, but left open the possibility of granting a break after hearing from both sides.
As TikTok moves toward a ban, here's what we know about what could happen next, including how Trump might intervene, how China might respond, and who would buy the app if it somehow ends up on the market.
TikTok's chances in the Supreme Court
After years of delays, TikTok is on the verge of a ban and has limited options to avoid it on January 19:
- Get the Supreme Court to strike down the law, send it back to the lower court, or extend the deadline for a sale.
- Get President Joe Biden to extend the deadline for a sale, up to 90 days, before his term ends on January 20.
- Getting President-elect Donald Trump, who has a soft spot for TikTok, to stop enforcement after he is sworn in.
- Get Congress to pass another law, repealing its original mandate.
- Make what the president determines is a “qualified divestiture” of its Chinese parent company, ByteDance, which will likely include less than 20 percent of the company being controlled by someone from an adversary nation.
This case is unusual and potentially difficult for the Supreme Court to decide because it faces two important interests: protecting free speech and protecting national security. That could result in some surprises when the justices hear oral arguments on Friday. But given the ease with which D.C. Circuit Court judges concluded that the law could survive even the highest threshold of First Amendment scrutiny, legal experts say TikTok could face a difficult path to bankruptcy. victory.
The Supreme Court agreed to evaluate whether the Controlled Requests Act to Protect Americans from Foreign Adversarieswhich passed by a wide margin last year, violates the First Amendment when applied to TikTok. The Justice Department has argued that the law is a constitutional and necessary step to safeguard U.S. national security, while TikTok and a group of its creators say it threatens to stifle free speech for the company and millions of others. Americans who use it.
Saurabh Vishnubhakat, a professor at Cardozo School of Law, says the makeup of the D.C. Circuit panel, made up of judges appointed by presidents of both parties, may “represent a pretty good cross-section of how the current makeup of the Supreme Court I might as well address this.” While he says it is “not a perfect mapping,” it is close enough to make you believe that judges will agree that the national security justifications of the executive and legislative branches are compelling.
It is not a good sign for TikTok that the court has waited to decide whether to block the law
If judges decide to apply strict scrutiny under the First Amendment, they would be less likely to simply defer to Congress. “In certain cases, the court may or may not feel that it is its job to question too strongly what Congress could have done,” Vishnubhakat says. But in an analysis of the First Amendment, while it says the court will not consider the opinions of the other branches “irrelevant,” judges may not hesitate to overrule them.
It's not a good sign for TikTok that the court waited to decide whether to block the law. As Vishnubhakat points out, only four judges are needed to take up a case, but to grant a stay, a majority must decide that letting the law remain in force will cause irreparable harm. and that TikTok will likely succeed on the merits of its case. The four judges aren't necessarily on TikTok's side either; They might also want to make their mark on a controversial legal issue.
Sahar Abi-Hassan, an assistant professor of political science at Northeastern University who studies the behavior of the Supreme Court, says the court could side with TikTok for several reasons, including its historical hesitancy to restrict speech. But he considers it more likely that the court will respect the law.
“This statute has broad support: It was passed on a bipartisan basis, so practically the court would go against the general will of Congress, and even the will of the executive branch in this case” in a victory for TikTok, he says. . But, he adds, judges can choose to rule in a way that doesn't set a broad precedent for companies beyond TikTok, either by narrowly tailoring a decision and framing it around business regulation or by issuing a plural opinion, where less than five justices sign the majority opinion.
Abi-Hassan says the lack of public evidence of TikTok's national security risks could influence judges' decision-making. “If you look at past cases where the government has alleged national security concerns, it's usually clearer,” Abi-Hassan says, pointing to decisions on issues like the Pentagon Papers.. “We actually don't have the evidence and we really don't fully understand how they came to the conclusion that this platform posed a national security threat.”
What Trump could do
Trump has promised to save TikTok, but those promises have been short on details. If the law is upheld, you have two options: order the Justice Department not to enforce the law or negotiate a settlement.
The first option could effectively frustrate Congress, although it's possible that app stores or internet hosting companies could ban TikTok anyway, deciding that it's not worth the risk of a $5,000 fine per user. access the application. “The executive branch has the ability to not enforce a law, and in that case, Congress doesn't really have much leeway on that,” Abi-Hassan says. But the Supreme Court can order the Justice Department to follow the law, and if the department can't find a creative way to get around those instructions, it could be found guilty of contempt of court.
Meanwhile, Trump has said he would love to negotiate a sale of TikTok, perhaps resurrecting aspects of a previously planned deal with Oracle and Walmart. But that depends on China coming to the table, which is far from guaranteed.
What could China do?
If SCOTUS upholds the law, the Chinese government has the final say on whether ByteDance can sell TikTok and avoid a ban. Hopeful buyers are betting it will greenlight a deal once ByteDance exhausts its legal options. But Long Le, a global business expert and associate teaching professor at Santa Clara University, says it is highly unlikely that the Chinese government will support the sale of the app.
TikTok is not available in China, where ByteDance offers a separate app called Douyin. But it remains extraordinarily valuable to the Chinese government. ByteDance is a local champion in the tech space, and Le predicts that the government is unlikely to give up on the global competitiveness that ownership of TikTok offers. TikTok has hundreds of millions of users outside the US, and ByteDance and China can bet that if they wait, the US government will eventually relent, Le says.
“They see this as illustrating that America's leadership in the world is not so positive.”
Last year, Chinese Foreign Ministry spokesman Wang Wenbin said publicly that forcing a sale or ban of TikTok “will inevitably come back to bite the United States,” calling it “bullying behavior” that “damages international investors' confidence in the investment environment and harms the normal international economic and trade order.”
“They see this as illustrating that America's leadership in the world is not so positive,” Le says. “For them it is as if they were biting the bullet of losing in a market. But from a political perspective, they think this could be useful to them.”
Who could buy TikTok and what would it be like?
If China agrees to allow ByteDance to sell TikTok (likely without its coveted recommendation algorithm), antitrust authorities would likely prevent tech giants like Meta and Google from buying it.
In addition to players that have previously expressed interest, such as Walmart and Oracle, potential contenders include some wild card bids, including a coalition called Project Freedom.
Project Liberty was founded by billionaire Frank McCourt with the promise of giving users more control over their data. The group is not interested in purchasing TikTok's algorithm, which is subject to export controls imposed by the Chinese government. “I hear this over and over again: 'TikTok's algorithm is amazing,'” McCourt says. “And yes, it is. But, you know, democracy is pretty amazing too.”
Project Liberty hopes to buy TikTok's user base, content and brand and then run that app with new, less opaque recommendation systems. “That's why we feel our offer is viable, because we are meeting one of China's core criteria, which is not abandoning the algorithm, while also addressing President-elect Trump's desire not to see the app banned,” he says. McCourt.
McCourt says he hasn't seen “any indication yet that they're willing to sell.”
McCourt believes that despite geopolitical concerns, China still wants the West to consider it open for business. And there's an incentive to meet the deadline: If app stores are forced to stop updating TikTok on Jan. 19, its value will begin to plummet while it's in limbo and users move elsewhere.
As of this week, McCourt says he has yet to see “any indication that they are willing to sell.” However, he remains hopeful. “People can change their minds if circumstances change,” he notes.
