An appeals court may soon decide TikTok’s fate, weeks before an American ban on the social media platform could go into effect. That’s if the incoming Trump administration doesn’t decide to upend the court’s decision.
TikTok debuted in the US in 2017 as a platform for short-form videos and became the most downloaded app in the world during the pandemic, a hub for creatives, activists, politicians, and more. However, as its influence grew, so did concerns that the app, owned by a Chinese company, could endanger American interests. That led to a bipartisan effort to force it to cut its ties with China or ban it.
The ban, which would drop TikTok from US app stores if its owner ByteDance does not divest by January 19, passed and was signed by President Joe Biden in April. TikTok and some of its content creators swiftly challenged the law in court, arguing that it violates the free speech rights of its more than 150 million American users. The Department of Justice has countered that the app, given its connection to a foreign adversary, must be banned for national security reasons.
TikTok and the DOJ have asked the DC Circuit to issue a ruling in the case by December 6. But that won’t necessarily resolve the matter of a ban once and for all. There could be a lengthy appeal at the US Supreme Court, and the incoming Trump administration could reverse course on the government’s TikTok policy.
President-elect Donald Trump has had a fickle relationship with TikTok. His cabinet picks are also divided on how to handle the platform. That leaves TikTok’s future uncertain, regardless of the outcome of legal challenges to a ban.
A TikTok ban has been in the works since the first Trump administration. Lawmakers have argued for years that the Chinese government is using the app to spy on Americans by collecting their personal data and to spread propaganda that could be used to influence US elections.
Trump, ever the anti-China hawk, tried to ban the platform unilaterally via executive order in 2020. But the order faced swift legal challenges that were never resolved before Biden came into office and rescinded it, instead helping craft legislation to ban it.
When the bill came before Congress in March, ByteDance urged its users to call their representatives in protest. Teens and older people alike reportedly pleaded with congressional staff, saying they spend all day on the app. Creators posted on TikTok urging their followers to do the same. Some offices decided to temporarily shut down their phone lines as a result, which meant that they couldn’t field calls from their constituents about other issues either.
Lawmakers in both parties didn’t take kindly to the impromptu lobbying frenzy. Some characterized it as confirmation of their fears that the Chinese-owned app — which was already banned on government devices — is brainwashing America. The overrun phone lines were merely “making the case” for the bill, Rep. Chip Roy (R-TX) wrote on X.
When the bill passed, ByteDance refused to sell TikTok, despite the fact that the company likely could have found a US buyer. Former Treasury Secretary Steve Mnuchin was among those publicly angling to purchase the app.
Instead, TikTok challenged the law in court, arguing that it violated American users’ free speech rights under the First Amendment of the US Constitution. It also said that it would not be possible for ByteDance to divest within the 270-day period specified by the law due to technological challenges and the fact that the sale would have to include TikTok’s algorithm — something the Chinese government would not allow it to sell.
“For the first time in history, Congress has enacted a law that subjects a single, named speech platform to a permanent, nationwide ban, and bars every American from participating in a unique online community with more than one billion people worldwide,” the company said in legal filings.
Legal experts say Congress likely doesn’t have the power to outright ban TikTok or any social media platform under the First Amendment unless it can prove that it poses legitimate and serious privacy and national security concerns that can’t be addressed by any other means. The question in the case before the DC Circuit is whether the government could have, in fact, addressed its national security concerns by other means and whether this ban actually does so. TikTok argues that the government could have found less restrictive ways to address its concerns and that the ban does not resolve them.
The government’s national security arguments in the lawsuit are redacted in legal filings. But reports have suggested that both the Chinese government and TikTok employees have abused the app’s user data. A former employee of ByteDance has alleged in court that the government accessed user data on a widespread basis for political purposes during the 2018 protests in Hong Kong. And last December, ByteDance acknowledged it had fired four employees who accessed the data of two journalists while trying to track down an internal leaker.
However, civil society groups have argued that a ban won’t address concerns about data privacy. The American Civil Liberties Union and the Center for Democracy and Technology (CDT) wrote in a letter to federal lawmakers that the Chinese government can still access Americans’ data in other ways. For instance, it could just as well buy Americans’ data on a legitimate open market, where the sale of that data remains unrestricted.
Nevertheless, the DC Circuit appeared skeptical of some of TikTok’s points during oral arguments in the case. The court noted that the US already bans foreign ownership of broadcasting licenses, asking why a ban on TikTok is substantially different. While acknowledging weighty free speech concerns with a ban, the court also questioned TikTok’s assertion that those rights would outweigh all else, to the point that the US could not ban the app even if at war with the country controlling it.
If the court upholds the ban, an appeal to the Supreme Court is likely. Since banning TikTok is an issue that cuts across party lines, it’s not clear how the conservative majority would rule. Trump’s return to the White House may also introduce uncertainty into the implementation of the ban, even if it survives legal challenges.
Despite previously seeking to ban TikTok, Trump has since warmed to the platform, on which he now has 14.6 million followers, and he has vowed to save it.
It’s unclear what exactly brought about his reversal. He’s said that banning TikTok would only benefit Meta, and he may be out for revenge against the company, which blocked him from Instagram and Facebook for two years following the January 6, 2021, insurrection at the US Capitol.
“Without TikTok, you can make Facebook bigger, and I consider Facebook to be an enemy of the people,” Trump told CNBC in March.
Another factor could be the influence of one of Trump’s billionaire megadonors. Jeff Yass’s investment firm Susquehanna reportedly owns 15 percent of TikTok’s parent company, a stake worth about $40 billion, according to the Financial Times. As of May, Yass had contributed more than any other individual donor to Republican candidates.
However, it’s not clear if Trump will keep his word to salvage TikTok given that he is surrounding himself with people who vehemently oppose the app. That includes his pick for secretary of state, Marco Rubio, and for Federal Communications Commission chair, Brendan Carr. Carr wrote in Project 2025 (the policy manifesto by the Heritage Foundation, a conservative think tank) that TikTok is part of a Chinese “foreign influence campaign by determining the news and information that the app feeds to millions of Americans.”
On the other hand, Trump has also nominated Robert F. Kennedy Jr. for health secretary and former Democratic Rep. Tulsi Gabbard for director of national intelligence. Both have substantial followings on TikTok and oppose a ban.
Trump may have several options if he does decide to oppose the TikTok ban. The language of the ban is “broad and invests the president with quite a bit of discretion in how he chooses to enforce the ban,” George Wang, a staff attorney at the Knight First Amendment Institute at Columbia University, told Vox. That includes determining whether ByteDance has engaged in a “qualified divestiture” from TikTok that would save it from a ban.
“It could grant the president some leeway to decline to enforce the ban if TikTok or ByteDance comes to some sufficient solution,” Wang said.
Alternatively, Trump may be able to influence the kinds of arguments that the DOJ would make to defend the ban (or not) before the Supreme Court if the case is appealed.
He might also be able to negotiate with Chinese officials to achieve a sale of TikTok to a US buyer in compliance with the law. James Lewis, director of the Strategic Technologies Program at the Center for Strategic and International Studies, told NPR that, based on his conversations with such officials, they may be more open to a sale if Trump backs down somewhat on his tariff threats against China.
But Wang said the best outcome would be a more permanent solution that protects Americans’ First Amendment rights, he said.
“Trump might decide not to enforce the TikTok ban when he first takes office in January, but he could also change his mind at any point,” he said. “And so, while I think maybe some of these enforcement and executive branch solutions might be good temporarily, I’m still really hoping that the courts declare the law unconstitutional or Congress decides to repeal it.”
