Salutations, Dear Readers, it has been awhile.
The last time we talked (using “talked” here in an admittedly one-sided way) it was my post on The Anti-TikTok Law, which I was refusing to call a “ban” because, well, I thought that was a large part of the legal issue to be decided in the coming weeks and months as we edged closer to the Act’s divest-or-drop-dead date of January 19, 2025.
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Today is January 17, 2025 and in the intervening months the case has traveled from DC Circuit arguments to the Supreme Court — culminating in its decision today to uphold the (horribly named) Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACAA).
So whether you call it a ban or not (and that was one of the issues!), the Anti-TikTok Law stands. TikTokUS’s parent company ByteDance has been emphatic in its refusal to divest or pursue any opportunities for divesting the company, and so on Sunday, the last day of President Biden’s term, TikTok will be banned in the U.S.
I’m not going to go through an explainer on what the Supreme Court’s ruling today meant for First Amendment doctrine or national security. (For that I’d recommended these threads by Daphne Keller, Jess Miers, Jameel Jaffer, and these articles by Mike Masnick and Alan Rozenshtein). Instead I’m going to go through the pragmatic outcome of this decision and how it aligns with this political moment.
Q: How exactly does the ban get executed against TikTok?
A: By Companies that are not TikTok.
The language of the Act aims at two types of companies to execute a ban on TikTok: first, companies that distribute TikTok the app, and second, companies that host TikTok.
The distribution companies are primarily the Apple store and Google’s Android Play Store, while internet hosting would primarily be cloud hosting providers like Oracle.
If these companies are found to be distributing or hosting TikTok after January 19th, they are subject to a $5000 penalty per user.
As Adam Conner notes, this works out to HUGE penalties
So rather than risk these insane fines (and we’ll get to the risk part of this in minute) these companies will simply pull TikTok from its app stores (this critically won’t delete it from phones) and U.S. servers and content distribution networks simply won’t deliver TikTok if you try to call it up from a browser.
Q: You might be wondering what about TikTok? What do they have to do?
A: Oddly nothing, but they’re doing stuff anyways.
The answer to that is that actually, there is no actual requirement in the Act that TikTok has to cease operations, though they’re doing so anyway. “This was the bill's design and intent,” said Conner, “to shut down TikTok by taking advantage of the duopoly chokepoints the app stores provide and making the US hosting illegal. That is why it'll be harder to keep TikTok alive after Sunday as well, because the companies with the most to lose aren't TikTok.”
Nevertheless, TikTok has announced it will roll up operations in the US on Sunday, either out of an abundance of caution over fines, or to make a point about the censorial nature of the Act.
Q: In the next few months, what is politically likely to happen to TikTok?
A: There are (at least) five likely outcomes following the Supreme Court’s decision today.
A few months ago, Alan Rozenshtein did a fantastic treatment of this question at
which informed my initial thinking on this. He listed three possible ways that Trump could save TikTok if he wanted to, but I’m changing the framing here slightly to talk about what the actual likely outcomes are.
1) No one does anything, the ban stands and TikTok is unavailable in the US.
Pretty self-explanatory.
2) Congress acts to pass a new law repealing the TikTok law.
Honestly, I find this to be highly unlikely given the state of Congress and its ability to agree on anything, but it’s 2025, baby. Anything is possible.
3) Trump issues an Executive Order (EO) stating that he’s against the ban and/or announcing that he’s invoking the Act’s 90-day extension.
An EO from Trump would have very little effect in law, and mostly perform a signaling function. The Act does allow a 90-day extension, but that doesn’t come from the President and its only invokable if discussions of divestment are currently in place (there are no discussions of divestment).
4) Trump orders the DOJ not to enforce the ban.
This is not mere signaling, but it is not getting rid of the ban, it is just a wink-and-a-nod from Trump (a man famously good as his word, a man who was for this ban before he was against it).
Now if you were lawyers for Apple, Google, or Oracle and your CEO came to you and said “what do you think, do you think that’s enough to put it back in the app store?” you should be absolutely fired if you answer is anything other than “HELL to the NO.”
$510B (Apple), $350B (Google), and $850B (Oracle) potential fines are not “let’s f— around and find out” numbers. They are avoid risk at all costs measures. So while I see Trump possibly doing this to put some heft behind an otherwise totally meaningless EO, I don’t actually see it shifting the availability of TikTok in the US.
5) TikTokUS puts together some type of re-structuring that looks enough like the Act’s required “meaningful divestment.” Trump squints hard at the deal and declares the terms of the Act met and TikTokUS free to operate.
It’s very important to note that under no circumstances will this actually be a meaningful divestment because TikTok's parent company ByteDance (which answers to the CCP!) has been EMPHATIC they will not sell TikTokUS.
Thankfully for Gen Z and their social media addled brains, however, Trump is on very good terms already with the real owner of TikTok, so negotiating exactly what is necessary shouldn’t be too difficult:
If TikTok gets saved this is my number one guess how. Everyone agrees to say (no matter what it actually is) that ByteDance Has Made A Very Serious Divestment proposal from TikTokUS and it “meaningful divests” under the terms of the Act because reversing the TikTok ban is good for domestic politics, good for geopolitics, and of course, good for Trump who gets credit for saving TikTok.
Q: How do you un-ban TikTok?
A: The President and some agencies declare the terms of the Act met and then we hope that all the other companies Apple! Google! Oracle! decide to turn it back on!
From the Act:
They don’t have to, and it would be a bit crazy if they didn’t, but again, it’s 2025, folks.
My Most Likely TikTok Timeline:
By January 19:
- Apple, Google, Oracle and other smaller servers and pieces of the content delivery network remove TikTok from availability in US.
By end of January:
- Trump issues EO calling giving extension of 90 days for divestment (which he can’t do) and saying he hates that mean-ol’-TikTok ban.
- Trump orders his Attorney General not to enforce TikTok Act.
Coming months:
- Trump strong arms Chinese government and ByteDance into a deal that will look enough like divestment to allow TikTokUS to keep operating.
Now a question for my Readers
Long, long, ago, at least 10 months, I engaged in a friendly wager with one of my good friends Dave Hoffman, who is a law professor at the University of Pennsylvania. The bet was about whether or not TikTok would actually go away (we think). To the best of our recollection, this is what it was:
Dave wins if on Monday, January 20, there is no TikTok OR TikTok is owned by someone else.Kate wins if on Monday, January 20, TikTok remains owned by Chinese communists AND Kate can still post on TikTok about the importance of the First Amendment over America’s national security.
I would like to point out that I should never EVER have accepted a bet where Dave gets an OR and I have an AND, and I doubt these were the precise terms, but I will accept Dave’s memory, old and faulty as it may be, and admit this might have been youthful indiscretion on my part.
The Stakes are much more clear:
If Dave wins, he gets. . . something, neither of us remember what. But maybe I have to buy him some heirloom tomato seeds or something.If Kate wins, Dave is not allowed to plant corn in his garden.
This is because Dave and I are gardening rivals and friends and every single year he asks me if he should plant corn and every year I tell him it is a waste of time to plant corn in his tiny, tiny garden, and every year he does it anyway, and then every year the squirrels eat it, and frankly, I’m sick of hearing about it.
In ANY event, we turn to you Dear Readers, to weigh in on this debate of who wins this bet:
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We may not have TikTok, but at least we have our sense of humor.
Finally, you all owe a thank you to my Dear Mother, who sent me this text message yesterday afternoon, which finally motivated me to write:
Thanks for reading, and I’ll be back soon with the estimable
, who is fluent in Mandarin (seriously!) and will join to report on the latest in RedNote, the App everyone is downloading now that TikTok is banned.
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