Is this the end of TikTok in the United States? In April, the US Congress passed a law forcing the social network to sell off its US activities by January 19, or else close up shop in the country. TikTok’s parent company, China’s ByteDance, quickly challenged this law in court, and in December was rejected by the Federal Court of Appeals in Washington. But a final legal recourse remains: the Supreme Court. On Friday, January 10, the Supreme Court will hear the case.
What is TikTok accused of?
The platform poses “serious threats” to national security, the federal government said in a brief to the Supreme Court. The US administration fears that the application could be used by Chinese authorities to blackmail or spy on its users, or to manipulate public opinion. At the previous hearing before the Federal Court of Appeals in Washington, the judges noted that TikTok had a majority Chinese shareholder and referred to abundant case law concerning foreign groups or organizations banned in the past, particularly in the telecommunications sector.
The US authorities have so far provided little concrete evidence publicly to back up their accusations. In December 2020, however, ByteDance acknowledged that some of its employees may have spied on journalists using data from the app.
How have TikTok and its supporters responded?
The company claims to have no links with the Chinese Communist Party, and asserts that it has taken every measure to protect its American users’ privacy. In particular, TikTok argues that it has set up a system for hosting US data in the United States (the “Texas project”). An argument weakened in 2022 by a Buzzfeed investigation showing that the Chinese parent company could still access American users’ data.
But above all, TikTok sought to shift the legal debate onto the terrain of freedom of expression, guaranteed by the First Amendment to the US Constitution. In December, it denounced “massive censorship” in support of its appeal to the Supreme Court. That accusation was joined by a group of content creators, whose complaint was merged with that of TikTok. The freedom of expression argument is not without weight: It was used as a legal basis by the US federal justice system when it overturned the ban on the app in the state of Montana, in 2022.
China, meanwhile, has criticized Washington’s “thuggish methods.” “A so-called national security pretext can be used to arbitrarily sideline successful companies from other countries,” blasted a Chinese diplomatic spokesman, Wang Wenbin, in March 2024.
What are the possible outcomes?
The Supreme Court can uphold the law’s legality (and thus endorse ByteDance’s obligation to sell TikTok’s US arm, or risk of being blocked), or on the contrary, declare it unconstitutional. However, Donald Trump has asked the justices to take a third route: temporarily suspend the application of the law, to allow time for the new presidential administration, after the January 20 inauguration, to resolve the situation “through political means [and find] a negotiated outcome that would avoid a nationwide shutdown of TikTok.”
It’s hard to say which scenario is more likely. It should be noted, however, that the Supreme Court is not a neutral body: It is made up of nine justices, three of whom were appointed by Trump, some under controversial conditions. There are only three Democratic justices on the Court. In any case, the decision could come down quickly. The law is due to take effect on January 19 and, as the American magazine Forbes notes, the speed with which the hearing has been scheduled is very unusual considering the delays usually seen for the Supreme Court. This suggests an intention to decide as quickly as possible.
If a ban is imposed, will Donald Trump be able to overturn it?
Trump has three options. The first is to have Congress vote to repeal the law. This is an uncertain scenario: In April, the bill was passed by more than 90% of Republican members of Congress. Moreover, the Republican majority in the House of Representatives is narrow, with 220 Republican members against 215 Democrats, and voting discipline there is not always predictable.
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The second option is to negotiate TikTok’s sale, or to find any solution that will enable it to stop being controlled by a player from a rival country. If Trump can demonstrate that the company is committed to this process, the law then allows him to suspend its ban for a period of 90 days. TikTok argued, however, that even if divestment were possible, its service would be “reduced to an empty shell, devoid of the innovative technology that tailors content to each user.”
A third possibility for the future administration would be not to enforce the law. This is an unlikely scenario, as the legal departments of the US companies needed to keep TikTok running smoothly − Apple and Google’s app stores or operators such as AT&T, for example − will be reluctant to bank on the law not being enforced, as attorney Alan Rozenshtein argued in a blog post. Especially as TikTok’s competitors could decide to take legal action themselves if the bill is not enforced.
Why does Trump support TikTok?
This may seem surprising, given that in 2020 the American president unsuccessfully sought the opposite: to ban TikTok with executive orders rejected by the courts. But his position has changed since January 2021, when Meta banned him from Facebook and Instagram following the assault on Capitol Hill led by his supporters. As a result, in March 2024, Trump declared: “If you get rid of TikTok, Facebook and ‘Zuckerschmuck’ [a distortion of Mark Zuckerberg’s name] will double their business. I don’t want Facebook, who cheated in the last Election, doing better.” He said that he considered Facebook the “enemy of the people.”
Trump’s positive feelings toward the Chinese social media even grew stronger after the presidential election. “I have a warm spot in my heart for TikTok because I won youth by 34 points,” he conceded in front of the cameras in December. TikTok is also very popular, with 170 million active users in the US, whom it would be foolish to dismiss. “For all those who want to save TikTok in America, vote for Trump,” he declared during his campaign.
