The fate of TikTok in the United States remains unclear as a law banning the Chinese-owned app is set to go into effect on Jan. 19.
On Friday, TikTok’s owner ByteDance will argue to the Supreme Court that the ban would violate Americans’ free speech rights and therefore should be overturned. The Biden administration and U.S. lawmakers say Chinese control of the app poses national security risks because the platform could be used for propaganda or spying. The bill issued an ultimatum to ByteDance: sell the app to a non-Chinese company or face a ban in the U.S.
The law would be enacted the day before president-elect Donald Trump takes office. Mr. Trump promised to save the app during his reelection campaign and last month asked the Supreme Court to pause the law so he could “seek a negotiated resolution,” an ironic turn considering the bid to ban TikTok first started with his administration.
Catch me up to speed. How did we get here?
Mr. Trump first tried to ban TikTok in August, 2020 with an executive order citing national security concerns, but the move was blocked by judges who found the president overstepped his authority and that the law violated the First Amendment. Congress revived the bill last spring after hearing classified FBI briefings on the security risks of TikTok’s Chinese ownership; it passed in Congress with wide bipartisan support and was signed into law by President Joe Biden in April, 2024.
TikTok has been fighting the law ever since. In December, a federal appeals court ruled unanimously to uphold the ban. Now, the Supreme Court will review the appeals court decision and consider if the underlying law is unconstitutional.
What would a ban look like?
The ban, which only applies in the U.S., blocks the distribution, maintenance and updating of the app, explains Jennifer Huddleston, a senior fellow in technology policy at the Cato Institute, a research organization in Washington, D.C. This means that Apple and Google would need to remove TikTok from their app stores, and the U.S.-based cloud service providers would need to stop hosting the app or face massive fines. However, it’s believed that TikTok could move its servers abroad to circumvent the hosting issue.
“If you wake up on Jan. 20 and you already have it on your phone, it won’t disappear,” said Ms. Huddleston. “But you’ll probably very quickly start to notice a degradation of the app experience because you won’t be able to install updates.”
If the app eventually becomes defunct in the U.S., the most diehard TikTok users could access the platform through a VPN and American creators may hire people in other countries to post content on their behalf.
“It happens with Chinese socials all the time,” said Sam Saideman, the co-founder and CEO of the U.S.-based influencer marketing agency Innovo, who say it’s common for American artists and influencers to work with foreign agencies to post content on apps such as Douyin, which is China’s version of TikTok, only accessible in China.
How could the Supreme Court rule?
Legal experts believe the Supreme Court could rule in a few ways: It could strike the law down, determining that it’s unconstitutional. It could uphold the law. Or the court could pause the law for an indefinite period of time, which is what Mr. Trump has asked for in a legal brief filed last month.
However, this third option doesn’t have much legal footing, according to Alan Rozenshtein, a former Justice Department attorney and associate professor of law at the University of Minnesota.
“The Supreme Court has no authority to just randomly pause a law duly enacted by Congress because the incoming president wants some more time to do something,” he said. “But in some sense, the Supreme Court can do whatever they want and the incoming president did ask them, so I’m sure they will take that request seriously. I’m highly skeptical that they follow that, but we live in weird times.”
Mr. Rozenshtein said the Supreme Court will likely rule quickly, as soon as Friday or Monday, but it will not release its reasoning behind the judgement until many months later.
Trump campaigned on saving the app. Does he actually have the power to do that?
Mr. Trump could try to get Congress to repeal the law, though this scenario is unlikely since the bill had wide support. He could try to convince ByteDance to sell TikTok to a government-approved buyer, but ByteDance has long said a sale is not feasible by the deadline and the Chinese government said it would not allow for the export of the technology that powers the app’s algorithm. He could also direct his attorney-general to not enforce the law.
Another possibility could be that Mr. Trump takes advantage of a potential loophole. The law is written in a way that gives a lot of discretion to the president to determine what counts as a “divestment” or a sale of TikTok, explains Mr. Rozenshtein. “The president gets a lot of leeway. If ByteDance moves some assets from corporation A to corporation B, if it creates enough legal smoke and mirrors, then maybe Trump can use that to say, ‘Aha, I have determined that ByteDance no longer owns TikTok’, even if ByteDance still owns TikTok.”
Mr. Rozenshtein notes that this last option, which he says could be legally challenged in court, is Mr. Trump’s most likely maneuver. “He will just declare that the law no longer applies and then see if anyone sues.”
If the ban does go through, which apps appear to be the frontrunners to take in the TikTok exiles?
The most likely beneficiaries are Instagram Reels, Snapchat and YouTube Shorts, says Mr. Saideman. In the leadup to the potential ban, he’s been telling creators to urge their audience to follow them on other platforms or to subscribe to their Patreons and email or SMS lists. Stock prices for Snap Inc. and Meta, which owns Instagram and Facebook, jumped this week, as investors appeared to bet on their platforms.
Some content creators are jumping on Lemon8, which is like a mash-up of TikTok, Instagram and Pinterest. But Lemon8 is also owned by ByteDance, so it too could eventually get banned if the law is upheld.
Could TikTok also be banned in Canada?
It’s hard to know. On the one hand, the Canadian government has already taken steps to quell national security concerns without banning the app outright, including prohibiting it on government devices and ordering the company to shut down its Canadian operations. (In December, TikTok Canada filed an appeal to this order.)
“The government went out of its way to emphasize they were not banning the app,” said Michael Geist, the Canada Research Chair in internet and e-commerce law. That suggests Ottawa was reluctant to make that move in 2024, possibly due to its unpopularity with TikTok users, he said. “I suspect that remains the case.”
But at the same time, there is past precedent where Canada was pressured to match U.S. tech policy.
Mr. Geist points to when Chinese tech giant Huawei was blacklisted in the U.S. in 2019, which led several companies, such as Google, Intel and Microsoft, to freeze business with the company. Then, Canada also banned the company from working on 5G infrastructure, which Mr. Geist says, was a decision made in part because of U.S. pressure
