Topline
A federal appeals court refused Friday to put its ruling upholding the federal ban on TikTok on hold while the company appeals to the Supreme Court, giving TikTok only weeks to secure a favorable ruling from the Supreme Court before the ban takes effect January 19.
Talia Cadet, TikTok creator and advocate, uses a phone outside of the U.S. Court of Appeals on Sept. ... [+]
Key Facts
The U.S. Court of Appeals for the D.C. Circuit declined to pause its ruling upholding the federal government’s law requiring TikTok to divest from Chinese parent company ByteDance or else be banned from U.S. app stores, after TikTok asked for the court to halt the ruling while the company requested the Supreme Court to take up the case.
TikTok argued it was necessary to pause the ruling in order to give the Supreme Court time to rule on the case without being “hasty,” also arguing that not pausing the law and letting it take effect on Jan. 19 as scheduled would irreparably harm the company and its 170 million U.S. users.
Temporarily stopping the law from taking effect would also allow the incoming Trump administration to weigh in on the legal dispute, TikTok argued, as reports suggest Trump wants to “halt” the ban—though it’s still unclear how he would do so.
The federal government opposed the law being paused, arguing that both sides asked the D.C. Circuit to rule by early December specifically so there would be time to appeal a ruling to the Supreme Court—eliminating the need for additional time.
In Friday's ruling, a three-judge panel of the D.C. Appeals Court affirmed the initial decision that said protecting Americans from foreign security threats outweighs TikTok's First Amendment rights.
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What To Watch For
If the Supreme Court will take up the case. TikTok has not yet filed its appeal and it’s unclear if the justices will agree to take up the case at all, let alone if they will issue a decision by the Jan. 19 deadline.
What Happens If The Tiktok Ban Takes Effect?
If the federal law banning TikTok takes effect—either on January 19 or later—it would prohibit companies like Apple and Google that control U.S. app stores from allowing TikTok on their stores, and block internet service providers like Oracle, which hosts TikTok’s user data, from enabling TikTok’s “distribution, maintenance, or updating.” That means that in addition to Americans no longer being able to download or update the TikTok app, companies could no longer “provid[e] the services that enable the TikTok platform to function, effectively shutting down TikTok in the United States,” TikTok said in a court filing. TikTok could also try to divest from ByteDance, which would allow it to keep operating, and President Joe Biden or President-elect Donald Trump could grant a 90-day extension under the law if TikTok shows it has started that divestment process. TikTok has so far refused to divest, however, claiming in its lawsuit that doing so is “not possible technologically, commercially, or legally.”
Surprising Fact
If the TikTok ban takes effect and Oracle stops hosting the app’s U.S. user data, that could mean all the personal data would be moved to China, which Forbes reported in 2023 was what happened when the app shut down operations in India. That transfer would potentially make the data more available to the Chinese government, which is specifically what Oracle taking over hosting of the company’s U.S. data was specifically designed to avoid.
Can Trump Stop The Tiktok Ban?
TikTok has claimed that if Trump weighs into the lawsuit over the TikTok ban and says he opposes banning the app, it could negate the app’s need to have the Supreme Court review the ruling. But it’s not yet clear how Trump could singlehandedly save the app in a foolproof way. Former DOJ official Alan Rozenshtein wrote in an op-ed for Lawfare that Trump could lobby Congress to repeal the ban—which is unlikely, given the legislation’s bipartisan support—or direct his Justice Department not to enforce the ban. That might not be enough to sway Apple, Google and Oracle to just ignore the law and leave TikTok up, however, as they would face harsh financial penalties if Trump ever changed his mind. Trump could also simply declare that TikTok is in compliance with the law and has adequately divested from ByteDance—whether it actually has or not—Rozenshtein noted, though that would likely still leave room for lawsuits challenging that declaration. Trump’s administration could also try and negotiate with TikTok on a deal that would allow Trump to say the company is in compliance, Sarah Kreps, director of Cornell University’s Tech Policy Institute, told the Associated Press, after the Biden administration previously rejected TikTok’s proposal for an agreement. It also remains to be seen if Trump could try and get TikTok to divest from ByteDance entirely, as James Lewis, director of the Strategic Technologies Program at the Center for Strategic and International Studies, told NPR that China may be more willing to approve a sale of TikTok to an American owner if Trump backs off his threat of high tariffs on Chinese imports in exchange.
Key Background
Biden signed the law requiring TikTok to divest in April, following widespread concerns from lawmakers on both sides of the aisle about national security issues involving the popular app. The government’s evidence for why it is necessary to ban TikTok was redacted from court filings and not released publicly, but Forbes has reported on numerous concerns involving the app, including including TikTok spying on journalists, tracking “sensitive” words, promoting Chinese propaganda criticizing U.S. politicians and mishandling user data. TikTok has denied all allegations of wrongdoing or blamed allegations on individual bad actors, and has long denied any links to the Chinese government. The social media company and creators on the app filed lawsuits against the ban days after it was signed into law, and the D.C. Circuit issued its ruling upholding the law on December 6. While TikTok argued the law violated the First Amendment rights of the company and its users, panel of appeals court judges ruled that it didn’t—because people can still say whatever they want on TikTok if it just divests from ByteDance—and the federal government was justified in banning it. By allowing TikTok to still operate as long as it divests from ByteDance, the law is actually the least restrictive way of handling the government’s concerns about the company, the judges ruled.
