TikTok’s position in the United States faces a precarious crossroads as legal and political tensions converge.
With the January 19 deadline fast approaching, ByteDance, the app’s China-based parent company, must decide whether to divest its US operations or risk an outright ban.
Concerns over national security have driven the debate, leaving TikTok with shrinking options to avert its ouster.
Supreme Court’s Stance and Timeline
Analysts initially estimated TikTok’s chances of winning in the Supreme Court at 30%, but after oral arguments, the probability dipped to 20%.
The justices appeared hesitant to grant TikTok an administrative stay to delay enforcement of the law. Experts suggest the court is reluctant to set a precedent of intervention on cases tied to administrative changes.
A decision could come as early as Friday, with the potential for additional orders on Monday. However, a delay may indicate a more detailed explanation is in the works, further adding uncertainty to TikTok’s future.
Trump’s Role and Legal Risks for Tech Giants
President-elect Donald Trump has hinted at the possibility of refusing to enforce the divest-or-ban law.
Legal experts caution that such inaction would not shield companies like Apple and Google from liability. These tech giants, which host TikTok on their app stores, could face fines of up to $5,000 per user—a potential liability in the billions of dollars.
US Solicitor General Elizabeth Prelogar underscored that enforcement has a five-year statute of limitations, meaning future administrations could still impose penalties on companies for non-compliance during Trump’s term.
Broader Implications for Foreign-Owned Companies
TikTok’s case could set a precedent impacting other foreign-owned companies such as Shein and Temu.
Arguments raised during the trial include concerns that corporate structure regulations might be used as a loophole for restricting free speech.
Cornell law professor Gautam Hans criticized the court’s apparent leniency toward a law that “implicates free speech rights on underspecified national security grounds.”
How the TikTok Ban Would Work
The ban would primarily target app stores and hosting services:
- App Store Removals
- TikTok would be removed from Google Play and Apple’s App Store, blocking new downloads and updates, leading to gradual app degradation.
- Hosting Services Prohibited
- US-based hosting providers, including cloud services, domain name servers, and file hosting platforms, would be barred from supporting TikTok.
- International Hosting Challenges
- While TikTok could shift to non-US-based hosting, this would result in slower, glitchier performance for US users.
- Indian Precedent
- A complete shutdown, similar to TikTok’s ban in India in 2020, could see users receiving notices of unavailability.
TikTok’s Legal Defense
TikTok’s arguments center on First Amendment rights and the logistical challenges of compliance:
- Free Speech Violation
- The company argued that banning TikTok infringes on free speech, impacting its algorithm and user-generated content.
- Alternative Measures
- TikTok proposed stricter data-sharing restrictions as a compromise, with severe penalties for breaches.
- Challenges of Divestiture
- ByteDance cited China’s export restrictions on key technologies, like TikTok’s algorithm, as a roadblock to divestment.
- Unequal Scrutiny
- TikTok noted that other foreign-owned apps, such as Shein and Temu, are not subjected to similar national security concerns.
U.S. Government’s Perspective
The Department of Justice (DOJ) outlined several risks and concerns:
- National Security Threats
- ByteDance, under Chinese law, could be compelled to share US user data with the Chinese government, potentially endangering national interests.
- Historical Precedents
- The DOJ highlighted past restrictions on foreign control of critical communication channels like radio and TV.
- Surveillance Allegations
- ByteDance’s alleged use of TikTok to surveil US journalists further fueled security concerns.
- Geopolitical Implications
- The government emphasized preventing adversaries from exploiting platforms to destabilize democratic institutions.
Potential Workarounds for Users
Even with a ban, users may find ways to access TikTok:
- VPNs: Virtual private networks could allow access, albeit with reduced app quality.
- Legal Implications: Individuals accessing TikTok through workarounds would not face penalties, keeping personal use legal.
Supreme Court’s Focus
Key questions raised during the arguments included:
- ByteDance’s Control: The court scrutinized TikTok’s claim that ByteDance lacks influence over its algorithm.
- Feasibility of Divestment: Justices debated the logistical challenges posed by divestment and China’s refusal to allow the sale of proprietary technology.
- First Amendment Protections: The court discussed whether TikTok’s algorithm constitutes “speech” warranting judicial scrutiny.
- Broader Precedents: Concerns arose over how the decision might affect other foreign-owned applications.
Free Speech and the Future
TikTok creators argue that banning the platform infringes on their free speech rights, likening TikTok’s algorithm to a publisher’s editorial decisions.
The case has sparked broader debate over whether government actions targeting corporate ownership could pave the way for further restrictions on digital platforms.
Experts remain divided on the long-term implications, but many see TikTok’s unique circumstances as unlikely to broadly impact US-based social media platforms.
As the January 19 deadline looms, TikTok’s fate hangs in the balance. ByteDance could still divest to comply with US law, but logistical and political hurdles complicate the process.
The Supreme Court’s ruling could not only decide TikTok’s future but also reshape the intersection of national security, free speech, and corporate ownership in the digital era.
