US TikTok ban: When could the app be banned and will Trump save it?
Social media company TikTok faces a ban in the US unless it is sold by its Chinese parent company ByteDance by 19 January.
However, President-elect Donald Trump - who takes office the next day - has asked the Supreme Court to delay the ban when it hears arguments about the case on 10 January.
US officials and lawmakers have accused TikTok's owner ByteDance of being linked to the Chinese government.
Many have cited national security concerns over the app, claiming that it could be forced by Beijing to hand over data about its 170 million US users.
The US Justice Department has said that because of its Chinese parent company, and access to data on American users, TikTok poses "a national-security threat of immense depth and scale".
In April 2024, US Congress passed a bill, which President Joe Biden signed into law, giving ByteDance nine months to find a US-approved buyer or see TikTok shut down across the US.
TikTok and ByteDance deny being linked to the Chinese government, or that any data would be handed over. They have also previously ruled out a sale.
The firms have filed multiple legal challenges against the law, saying it is "unconstitutional" and would have a "staggering" impact on free speech by censoring its US users.
They have said that even a temporary ban in early 2025 would have "devastating effects" on their operations and users.
The US Supreme Court has deferred TikTok and ByteDance's request for an emergency injunction to delay a potential ban while it hears their case.
It will hear arguments from the companies, and the US government, about whether the law violates the US constitutional right to free speech, on 10 January.
Donald Trump's victory in the 2024 election may offer TikTok a lifeline.
He tried to ban the app while he was in the White House in 2020, but has now called on the US Supreme Court to delay the ban while he works on a "political resolution"
Ahead of the hearing, his lawyer filed a legal brief saying that Trump "opposes banning TikTok" and intends to resolve the issues "through political means once he takes office".
Trump's meeting with TikTok's boss Shou Zi Chew in December also increased hopes among the law's opponents that he would intervene.
Online marketplaces, such as app stores, and web hosting platforms will have to stop making TikTok available to Americans if its ban goes ahead.
Politicians have told Apple and Google's bosses to be ready to pull TikTok from the App Store and Google Play store for iOS and Android devices.
Most people download apps onto their smartphones and tablets through app stores, so the ban would stop new users from getting TikTok.
It also would mean that people who already had the app would no longer be able to get future updates designed to improve security or fix bugs.
The bill forbids applications controlled by US adversary countries from being updated and maintained in the US.
It gives broad powers to the president to limit apps with ties not only to China but also Russia, Iran and North Korea.
At the heart of TikTok is its algorithm - a set of instructions that determine the content displayed to users, based on data about how they engaged with other material.
TikTok can use this data, as well as information about an individual user's device, location and keystroke rhythms, to recommend videos to users on its automatically generated For You feed.
Some researchers have previously claimed the app collects more data from users than others in order to power its highly personalised system.
However, rival social media platforms such as Facebook and Instagram collect similar user data.
TikTok is already banned in India, which was one of the app's largest markets before it was outlawed there in June 2020.
It is also blocked in Iran, Nepal, Afghanistan and Somalia.
The UK government and Parliament banned TikTok from staff work devices in 2023, as has the European Commission.
The BBC also advised staff to delete TikTok from corporate phones because of security fears.
How TikTok could avoid being banned in the U.S.
Washington — TikTok's fate in the U.S. appears to be hanging by a thread after a federal appeals court denied its plea to delay a law that will ban the widely popular app if it does not cut ties with its Chinese parent company ByteDance.
The law, which goes into effect on Jan. 19, gave ByteDance nine months to sell TikTok. Absent a sale, the app will be cut off from app stores and web-hosting services in the U.S. The law also gives the president the ability to grant a 90-day delay if a sale is in progress.
According to experts, TikTok has several pathways for avoiding a ban, most notably intervention from the Supreme Court or the incoming Trump administration declining to enforce it. Other options, like a last-minute sale or Congress deciding to repeal the law, appear less likely.
On Monday, TikTok asked the Supreme Court to temporarily pause the law, arguing the appeals court's decision upholding it was "utterly antithetical to the First Amendment."
"If the Act is allowed to take effect in January 2025 … this Court will lose its ability to grant applicants meaningful relief," lawyers for TikTok and ByteDance wrote. "Even a temporary shutdown of TikTok will cause permanent harm to applicants — a representative group of Americans who use TikTok to speak, associate, and listen — as well as the public at large."
The Supreme Court could grant an injunction temporarily blocking the law while TikTok's appeal plays out, saving the app for the time being.
The justices will also need to decide whether to hear the case once TikTok formally requests they do so. If they decline, the appeals court's ruling would be the final say on the matter, and the ban would go into effect, barring intervention by the president. If the high court takes the case, the injunction would almost certainly be in place — and thus the ban on hold — until the justices hear and decide the dispute. That process would likely take months.
TikTok asked the justices to make a decision on its request for an injunction by Jan. 6 so that it can "coordinate with their service providers to perform the complex task of shutting down the TikTok platform only in the United States" if the justices decline.
The company said a sale is not an option at this point, but a prolonged legal battle before the Supreme Court could buy time to explore a deal. The Chinese government is opposed to selling TikTok's algorithm, meaning a new buyer would be forced to rebuild it from scratch. The algorithm tailors video recommendations to each user and is made up of millions of lines of code.
In its ruling earlier this month, the panel of judges from the U.S. Court of Appeals for the District of Columbia Circuit was sympathetic to the U.S. government's argument that TikTok poses a national security risk as long as the Chinese government can use it to collect data on its 170 million users in the U.S. and covertly manipulate the content those users see on the platform. The appeals court rejected TikTok's bid for temporary pause on the ban last week.
Alan Morrison, an associate dean at George Washington University Law School, expects the Supreme Court to take up the case, but said TikTok is likely to face similar skepticism over its claims that the law violates the First Amendment. Morrison said an argument centered on a constitutional provision that prohibits "bills of attainder" could be more persuasive. A bill of attainder is legislation that punishes or targets a specific party without first going to trial.
"The bill of attainder was a much stronger claim than the First Amendment," said Morrison, who teaches constitutional law."Congress has decided what the new standard of the law is. It's decided who the defendant is — TikTok — and it's essentially adjudicated their guilt — guilt in a civil sense, not in a criminal sense — which is the mark of a bill of attainder."
During oral arguments before the appeals panel in September, Judge Douglas Ginsburg pushed back on the notion that the law singles out TikTok, although it and ByteDance were the only companies named in the legislation. Ginsburg said the law "describes a category of companies, all of which are owned by or controlled by adversary powers and subjects one company to an immediate necessity." He noted that TikTok and the government have been engaged in unsuccessful negotiations for years to try to find a solution to the national security concerns and it's "the only company that sits in that situation."
"Maybe the Supreme Court will think differently," Morrison said.
Sarah Kreps, the director of the Tech Policy Institute at Cornell University, said the incoming Trump administration could play a role in whether TikTok is banned.
President-elect Donald Trump, who tried to ban the app with an executive order during his first term that was struck down in the courts, vowed this year to "save" it. On Monday, Trump touted TikTok as playing a role in helping him with the youth vote and winning the 2024 election. He told reporters that he would "take a look at TikTok" when asked how he planned to stop the ban.
"I have a warm spot in my heart for TikTok," he said. The same day, Trump met with TikTok's CEO Shou Chew at his Mar-a-Lago estate, sources familiar with the meeting told CBS News.
Kreps said Trump has several options once he takes office on Jan. 20, the day after the law goes into effect.
"If [Trump] wants to save TikTok, he could ask Congress to repeal the ban. I don't think that's going to happen. He could ask the [Justice Department] not to enforce the law and signal to Apple and Google that they wouldn't be prosecuted. I don't think that's going to happen either," Kreps said. Android and iPhone users depend on the Google Play and Apple App Store to download apps, giving the tech giants a role in carrying out the ban.
"But what I think could happen is, all of these compliance issues take resources, so he could just simply not provide the resources to enforce the ban," Kreps said. "I think there are ways bureaucratically he could try to massage this so that he's not overturning the ban, but he's also not strictly enforcing it."
Trump also has the authority to issue a 90-day delay of the law once he's in office, although that move requires the president to certify to Congress that "evidence of significant progress" toward a divestiture has taken place.
A provision in the law that gives the president the power to determine whether an app is no longer controlled by a foreign adversary presents another potential workaround, according to Erik Stallman, a clinical professor of law at the University of California, Berkeley. The law says the president determines when the divestiture requirements are met, although it stipulates that the determination has to happen through an interagency process.
"Trump can say that he's satisfied that this U.S.-based entity that they've set up is sufficiently distinct from ByteDance to no longer require a divestiture," Stallman said.
During its back and forth with the U.S. government over the years, TikTok created a U.S.-based subsidiary, TikTok U.S. Data Security Inc., to limit ByteDance's access to user data. The move was meant to alleviate national security concerns about user data and the Chinese government's access. It also gave responsibility to Oracle, a U.S. company, to store and protect U.S. user data. Lawmakers, however, viewed those protections as insufficient, and passed the law requiring its sale anyway.
Even if the law isn't enforced by the Trump administration, Apple and Google could decide that it's not worth the risk to host TikTok in their app stores. Both companies are already involved in litigation with the Justice Department involving other matters. The TikTok legislation imposes hefty fines on companies found to be in violation, and Trump or his eventual successor could change their minds on enforcement.
"I think they want to be above board on the things that they have some clear-cut control over and this would be one of them," Kreps said of Apple and Google.
Google declined to comment on its plans. Apple did not return a request for comment.
On Friday, the leaders of the House China Committee sent letters to Apple and Google telling them to be ready to remove TikTok from their app stores by Jan. 19. Though TikTok won't disappear from users' phones, app updates would no longer be available and those who don't already have TikTok would not be able to download it.
Kreps expects TikTok users to migrate to other apps like Instagram and YouTube in the coming weeks if they haven't already. TikTok estimated that even a one-month shutdown would result in the platform losing a third of its daily users in the U.S.
"Every next step where they're blocked makes this more of a self-fulfilling prophecy," Kreps said. "The more people start to migrate, the more this ban has its intended effect, which is to move people elsewhere. But also as people move elsewhere, the impact of a ban actually is mitigated also."
Billionaire Frank McCourt Leads Formal Offer To Buy TikTok—Here’s Everything We Know As Ban Looms
The People's Bid for TikTok, a project a spearheaded by Project Liberty founder and billionaire investor Frank McCourt, has delivered a proposal to the video app's Chinese parent company ByteDance to buy TikTok's U.S. assets ahead of a ban on the popular social media app set to take effect Jan. 19.
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The ban against TikTok could become effective as early as Jan. 19 unless ByteDance commits to selling TikTok to another company or the Supreme Court overturns the federal law behind the ban. The court is expected to hear oral arguments Friday.
A range of companies have shown interest or been rumored to consider a purchase of TikTok. Project Liberty, the group leading The People’s Bid For TikTok, has built a consortium to purchase TikTok that includes O’Leary and Guggenheim Securities. The People’s Bid website notes it is not interested in acquiring TikTok’s algorithm, which ByteDance has shown no intent on selling. TikTok did not immediately respond to Forbes’ request for comment on The People’s Bid. Amazon has also been identified as a potential buyer, with experts pointing to TikTok and Amazon’s deepening ties, such as the announcement of a partnership this year allowing users to browse and purchase products from Amazon on TikTok. Amazon also became the third-largest advertiser on TikTok this year in the U.S. Oracle and Walmart could potentially make a joint bid for TikTok, as the two companies joined forces to buy the app in 2020 before reportedly being stopped by the Biden administration over security concerns. Microsoft could return to the table for TikTok after also trying to buy the app in 2020, though Microsoft CEO Satya Nadella said he was “happy with what I have” after talks fell through. Video-sharing platform Rumble publicly offered to buy TikTok early this year and could reenter the conversation, having said it was previously “ready to join a consortium with other parties seeking to acquire and operate TikTok inside the U.S.” China, which has vowed to block the sale of TikTok’s algorithm, would have to approve a sale of TikTok to another company, though the country is unlikely to do so.
McCourt, worth an estimated $1.4 billion as of Thursday, is an investor and entrepreneur with roots in his family's Boston-based construction business founded five generations ago. He bought the Los Angeles Dodgers in 2004 and sold it eight years later in what was the largest sports sale at the time, and has invested the proceeds into real estate, sports, tech and media. He has since invested $500 million to Project Liberty, an organization that advocates for data privacy.
Yass, who has an estimated net worth of $49.6 billion, is a GOP megadonor and a major investor in TikTok. He reportedly met with Trump and became possibly the biggest influence behind Trump’s switch from attempting to ban the app to later opposing its removal.. The co-founder of global trading firm Susquehanna International Group, which owns about 15% of ByteDance, Yass owned a $33 billion stake in TikTok as of this March and has financially backed conservative lawmakers opposing the ban, such as Sen. Rand Paul, R-Ky., and Rep. Thomas Massie, R.-Ky., donating $24 million and $32,200 to each, respectively, according to The Wall Street Journal. Yass has reportedly threatened to stop donating to Congress members who support the ban against TikTok, which would threaten his multi-billion dollar investment in the app. The billionaire has donated millions of dollars to conservative PACs such as Club For Growth Action ($16 million), the Congressional Leadership Fund ($10 million) and the Protect Freedom PAC ($6 million).
Potentially, though his options are limited. The Supreme Court agreed to hear arguments in January, meaning Biden’s Justice Department will defend the law in court instead of Trump’s Justice Department, which the president-elect could instruct to not enforce the law if the Supreme Court decides to uphold the ban before he takes office. However, even if Trump could ask the Supreme Court not to push for the ban, the move may lack the impact his administration would aim for, as Apple, Google and Oracle could still drop TikTok since they would risk financial penalties if they kept the app online and Trump later reconsidered his position on TikTok. Former Justice Department official Alan Rozenshtein wrote in a Lawfare op-ed that Trump could also lobby Congress to repeal the ban, though in doing so he would have to overcome the law’s bipartisan support. Additionally, Trump could allow TikTok to go down and bring the app back to app stores and the internet with a one-time, three-month extension that would potentially give time to help facilitate a sale of TikTok.
All of Americans’ TikTok user data could be moved to China in the event that the app is banned from the U.S. A precedent was set for such a move in 2020, when TikTok operations ended in India and left the app and ByteDance with access to millions of Indian users’ data years after the shutdown, according to Forbes.
About 170 million. That is how many Americans used TikTok as of April, according to the app.
At the heart of the federal government's issue with TikTok is national security and data privacy concerns linked to the app and its ties to China. U.S. officials have claimed the Chinese Communist Party could use the app to spy on Americans or influence public discourse. TikTok has shot down claims it is beholden to the Chinese government. The app’s CEO told Congress this year he “disagrees with the characterization" that the platform is spying on Americans and said TikTok is committed to protecting Americans’ data. After the law against TikTok was signed by Biden this year, the app said the requirement to sell itself is “illusory to the point of being no alternative at all.” Experts and reporting by Forbes have shown ByteDance and TikTok are significantly intertwined, as former National Security Agency general counsel Glenn Gerstell told Forbes this year: “There's no way to take the U.S. piece out of TikTok and sell it to someone.” ByteDance has tried to quell concerns about TikTok by noting 100% of U.S. traffic was routed to Oracle and U.S. Digital Service infrastructure in the U.S as of 2022. It has also claimed it is roughly 60% owned by institutional investors including the Carlyle Group, General Atlantic and Susquehanna International Group. However, Forbes’ reporting has revealed that ByteDance has used TikTok to spy on journalists and TikTok mishandled sensitive data, including financial information, Social Security numbers and personal contacts of creators, advertisers, celebrities and politicians.
Supreme Court Will Hear TikTok Ban This Week—Here’s What To Expect (Forbes)
Who Is Frank McCourt, The Billionaire Trying To Buy TikTok? (Forbes)
Why A Powerful U.S. Court Thinks The TikTok Ban Doesn’t Violate The 1st Amendment(Forbes)
The TikTok Law Gives You A Right To Your Data. Here’s How To Request It. (Forbes)
If Trump Wants To ‘Save’ TikTok, He Might Need It To Get Banned First (Forbes)
Congress Warns Apple And Google They Must Ban TikTok In January (Forbes)
If TikTok Is Banned, Americans’ Data Could End Up Back In China (Forbes)
TikTok Asks Supreme Court To Stop Federal Ban (Forbes)
TikTok Spied On Forbes Journalists (Forbes)
TikTok’s China Problem (Forbes)
CORRECTION (1/9): This story has been updated to note Project Liberty is not a non-profit. The Project Liberty Institute is the organization’s non-profit arm.
TikTok could shut down unless Supreme Court blocks or delays U.S. ban
In one of the most important cases of the social media age, free speech and national security collide at the Supreme Court on Friday in arguments over the fate of TikTok, a wildly popular digital platform that roughly half the people in the United States use for entertainment and information.
TikTok could shut down the social media site in the U.S. by Jan. 19 unless the Supreme Court strikes down or otherwise delays the effective date of a law aimed at forcing TikTok's sale by its Chinese parent company.
"Absent such relief, the Act will take effect on January 19, 2025," TikTok said in a Dec. 9 legal filing. "That would shut down TikTok—one of the Nation's most popular speech platforms — for its more than 170 million domestic monthly users on the eve of a presidential inauguration."
Working on a tight deadline, the justices also have before them a plea from President-elect Donald Trump, who has dropped his earlier support for a ban, to give him and his new administration time to reach a "political resolution" and avoid deciding the case. It's unclear if the court will take the Republican president-elect's views — a highly unusual attempt to influence a case — into account.
TikTok and China-based ByteDance, as well as content creators and users, argue the law is a dramatic violation of the Constitution's free speech guarantee.
"Rarely if ever has the court confronted a free-speech case that matters to so many people," lawyers for the users and content creators wrote. Content creators are anxiously awaiting a decision that could upend their livelihoods and are eyeing other platforms.
The case represents another example of the court being asked to rule about a medium with which the justices have acknowledged they have little familiarity or expertise, though they often weigh in on meaty issues involving restrictions on speech.
TikTok has several pathways to avoid a ban outside of Supreme Court intervention, experts told CBS News.
Trump could take action once he's in office and ask the Justice Department not to enforce the law or prosecute tech companies, like Apple and Google, who host TikTok in their app stores. Trump also has the authority to issue a 90-day delay of the law after Jan. 19, though he would have to certify to Congress that "evidence of significant progress" toward a divestiture has taken place.
TikTok won't disappear from Americans' phones on Jan. 19 if the law takes effect. However, users would not be able to update the app and those who don't already have it would not be able to download it.
The Biden administration, defending the law that President Joe Biden signed in April after it was approved by wide bipartisan majorities in Congress, contends that "no one can seriously dispute that (China's) control of TikTok through ByteDance represents a grave threat to national security."
Officials say Chinese authorities can compel ByteDance to hand over information on TikTok's U.S. patrons or use the platform to spread or suppress information.
But the government "concedes that it has no evidence China has ever attempted to do so," TikTok told the justices, adding that limits on speech should not be sustained when they stem from fears that are predicated on future risks.
In December, a panel of three appellate judges, two appointed by Republicans and one by a Democrat, unanimously upheld the law and rejected the First Amendment speech claims.
Adding to the tension, the court is hearing arguments just nine days before the law is supposed to take effect and 10 days before a new administration takes office.
In language typically seen in a campaign ad rather than a legal brief, lawyers for Trump have called on the court to temporarily prevent the TikTok ban from going into effect but refrain from a definitive resolution.
"President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the Government — concerns which President Trump himself has acknowledged," D. John Sauer, Trump's choice to be his administration's top Supreme Court lawyer, wrote in a legal brief filed with the court.
Trump took no position on the underlying merits of the case, Sauer wrote. Trump's campaign team used TikTok to connect with younger voters, especially male voters, and Trump met with TikTok CEO Shou Zi Chew at Trump's Mar-a-Lago club in Palm Beach, Florida, in December. He has 14.7 million followers on TikTok.
The justices have set aside two hours for arguments, and the session likely will extend well beyond that. Three highly experienced Supreme Court lawyers will be making arguments. Solicitor General Elizabeth Prelogar will present the Biden administration's defense of the law, while Trump's solicitor general in his first administration, Noel Francisco, will argue on behalf of TikTok and ByteDance. Stanford Law professor Jeffrey Fisher, representing content creators and users, will be making his 50th high court argument.
If the law takes effect, Trump's Justice Department will be charged with enforcing it. Lawyers for TikTok and ByteDance have argued that the new administration could seek to mitigate the law's most severe consequences.
But they also said that a shutdown of just a month would cause TikTok to lose about one-third of its daily users in the U.S. and significant advertising revenue.
As it weighs the case, the court will have to decide what level of review it applies to the law. Under the most searching review, strict scrutiny, laws almost always fail. But two judges on the appellate court that upheld the law said it would be the rare exception that could withstand strict scrutiny.
TikTok, the app's users and many briefs supporting them urge the court to apply strict scrutiny to strike down the law.
But the Democratic administration and some of its supporters cite restrictions on foreign ownership of radio stations and other sectors of the economy to justify the effort to counter Chinese influence in the TikTok ban.
A decision could come within days.
Editor's note: This story has been changed to clarify that TikTok could shut down on Jan. 19 if the Supreme Court rules against its request for a temporary injunction that would overturn or delay a law that could lead to a U.S. ban.
The TikTok ban heads to the Supreme Court tomorrow. Here's what to know about the case.
Washington — The Supreme Court is set to hear arguments Friday morning on whether to overturn or delay a law that could lead to a ban on TikTok in the U.S. in the coming days.
The law is set to take effect on Jan. 19, nine months after it swiftly passed Congress with bipartisan support and was signed into law by President Biden. It requires the widely popular app to cut ties with its China-based parent company, ByteDance, or lose access to app stores and web-hosting services in the U.S. The law also gives the president the ability to grant a 90-day delay in its implementation if a sale is in progress.
The case pits the First Amendment's right to free speech against what the federal government and lawmakers say are threats to national security posed by TikTok. The Supreme Court moved with extraordinary speed in considering the case, agreeing to take up the dispute just two days after lawyers for the platform sought its intervention on an emergency basis.
The question before the court is whether the law targeting TikTok violates the First Amendment. Here's what to know about the case:
The legal battle arose from a law passed by Congress as part of a foreign aid package in April. Called the Protecting Americans from Foreign Adversary Controlled Applications Act, the measure makes it unlawful for third-party service providers like Google or Apple to "distribute, maintain or update" an app controlled by a foreign adversary by providing certain services, such as offering it in app stores.
Under the law, any app operated by ByteDance, TikTok, or its subsidiaries is considered a "foreign adversary controlled application." The designation also covers apps operated by a "covered company" controlled by a foreign adversary — China, Russia, North Korea or Iran.
The prohibitions are set to take effect 270 days after the law was enacted, on Jan. 19. Under the law, TikTok can remain available, however, if it divests from ByteDance. The measure also allows the president to grant a single, 90-day extension if a sale is underway.
In a brief laying out its arguments to the Supreme Court, the U.S. government said the vast amount of information TikTok collects on its users could be wielded by the Chinese government for "espionage or blackmail" purposes or to "advance its geopolitical interests" by "sowing discord and disinformation during a crisis."
"In response to those grave national-security threats, Congress did not impose any restriction on speech, much less one based on viewpoint or content. Instead, Congress restricted only foreign adversary control: TikTok may continue operating in the United States and presenting the same content from the same users in the same manner if its current owner executes a divestiture that frees the platform from the [People's Republic of China's] control," the Justice Department said.
Lawyers for TikTok have argued that shuttering the app in the U.S. will silence not only its speech, but also that of the 170 million Americans who regularly use it. In its filing, lawyers for the platform called the potential shutdown "unprecedented" and said the government's justification is "at war with the First Amendment."
Additionally, TikTok has argued that divesture from ByteDance is not possible, and the parent company said in April that it will not sell the platform.
A group of eight TikTok users also challenged the law on First Amendment grounds and have argued that outlawing the platform will deprive them of access to a "vital communications forum," through which they can earn a living and spread ideas.
The legislation, lawyers for the creators wrote in a filing with the court, "violates the First Amendment because it suppresses the speech of American creators based primarily on an asserted government interest — policing the ideas Americans hear — that is anathema to our nation's history and tradition and irreconcilable with this court's precedents."
But an appeals court disagreed with TikTok and the users' First Amendment claims. In a December ruling, a three-judge panel from the U.S. Court of Appeals for the District of Columbia Circuit was sympathetic to the government's argument that TikTok poses a national security risk. The appeals court later rejected TikTok's bid for a temporary pause on the ban while it sought the Supreme Court's review.
Thomas Berry, an expert in constitutional law at the Cato Institute, said it would be "unprecedented" for the Supreme Court to uphold a law that restricts such a popular and widely used platform in the U.S., but said its reasoning if it sides with the government is significant.
"If the court relies on notions of disinformation or content manipulation as a justification, that would be extremely harmful to the First Amendment doctrine because it would essentially give a greenlight to the government targeting a speech platform for the content it carries," he said. Berry filed a friend-of-the-court brief in support of TikTok and the users.
But if the court upholds the law based on the data collection concerns, he said "that would still be unfortunate deference shown to government arguments that haven't been backed up by a public record, but that would potentially be more of a good-for-this-case-only type of ruling."
Additionally, Berry said the impact of a ban on users is an important perspective for the court to consider.
"It humanizes the speech happening on this platform and emphasizes, especially to justices who might not be familiar with it, that this isn't just speech being broadcast in from foreign countries," he said. "This is primarily Americans speaking to other Americans, and lots of totally apolitical speech is happening and being found through the TikTok discovery algorithm."
Jennifer Safstrom, who directs the Stanton Foundation First Amendment Clinic at Vanderbilt Law School, said TikTok may have more of an uphill battle in making its case because "one of the strengths of the government's position is that the executive and legislative branches are given a lot of deference with respect to national security."
"So there's often a hesitancy for courts to second-guess the political branches on those kinds of national security questions," Safstrom told CBS News.
Patrick Toomey, the deputy director of ACLU's National Security Project, said the government has not supported its claims against TikTok with concrete public evidence. The ACLU has urged the Supreme Court to block the ban in a friend-of-the-court brief.
"The government can't impose this type of total ban unless it's the only way to prevent extremely serious and imminent harm to national security," Toomey told CBS News. "That means not just gesturing at the possibility that these types of harms could come from exploitation of TikTok, but providing evidence that either those harms are ongoing and widespread or are imminent, and we haven't seen that kind of evidence."
The Supreme Court is hearing the case in the final days of the Biden administration. President-elect Donald Trump, who in recent months has expressed support for TikTok, takes office a day after the law is set to go into effect.
A lawyer for Trump filed a friend-of-the-court brief asking the Supreme Court to pause the law's implementation, saying the incoming president opposes banning TikTok at this time and wants the ability to resolve the dispute through "political means."
"President Trump takes no position on the merits of the dispute. Instead, he urges the Court to stay the statute's effective date to allow his incoming Administration to pursue a negotiated resolution that could prevent a nationwide shutdown of TikTok, thus preserving the First Amendment rights of tens of millions of Americans, while also addressing the government's national security concerns," Trump's attorney D. John Sauer wrote.
The president-elect intends to nominate Sauer for solicitor general in his second term. If confirmed by the Senate, Sauer will argue on behalf of the federal government before the Supreme Court.
Trump recently met with TikTok's chief executive at his Mar-a-Lago estate in Florida and has praised the platform for helping him win over younger voters in the November election.
The president-elect's support for the widely popular app is an about-face from his first term in office. In August 2021, he took unilateral action that would have effectively banned TikTok in the U.S. after finding that its data collection posed a risk that China would use Americans' data for malign purposes. The ban, however, never took effect after it was blocked by a federal court and the executive order rescinded by Mr. Biden.
Though Trump is pushing for a delay, members of his incoming administration have firmly backed restricting TikTok, including his nominee to be secretary of state, Republican Sen. Marco Rubio of Florida, and his national security adviser pick, Republican Rep. Mike Waltz of Florida.
Leaders of the House China Committee and Republican Sen. Mitch McConnell of Kentucky also submitted friend-of-the-court briefs to the Supreme Court, both arguing that the law should be upheld.
Lawmakers and intelligence agencies have long had suspicions about the app's ties to China and have argued that the concerns are warranted because Chinese national security laws require organizations to cooperate with intelligence gathering. FBI Director Christopher Wray told lawmakers last year that the Chinese government could compromise Americans' devices through the software.
In response to the national security concerns, Congress prohibited TikTok on federal government devices in 2022, and a majority of states have barred the app on state government devices.
TikTok has argued that several issues would arise if the platform is forced to cut all ties to ByteDance. Because the Chinese government is opposed to selling the algorithm that tailors video recommendations to each user, a new buyer would have to rebuild it from scratch. The platform would also become a "content island" in the U.S. — if it cannot share data with ByteDance, "American users would be unable to access global content, and American creators would be unable to reach global audiences," its lawyers said.
Still, TikTok has several pathways to avoid a ban outside of Supreme Court intervention, experts told CBS News.
Trump could take action once he's in office and ask the Justice Department not to enforce the law or prosecute tech companies, like Apple and Google, who host TikTok in their app stores. Trump also has the authority to issue a 90-day delay of the law after Jan. 19, though he would have to certify to Congress that "evidence of significant progress" toward a divestiture has taken place.
TikTok won't disappear from Americans' phones on Jan. 19 if the law takes effect. However, users would not be able to update the app and those who don't already have it would not be able to download it.
What happens after the TikTok ban?
Jan 6 (Reuters) - The U.S. Supreme Court will hear arguments on Friday from TikTok and its China-based owner ByteDance, which is seeking to block a law signed by President Joe Biden that will ban the short-form video app beginning Jan. 19 unless it is divested from ByteDance, due to national security concerns. TikTok requested an injunction to pause the ban during the legal process, but the Supreme Court did not immediately act on the request.
Here’s what could happen on Jan. 19.
New users will not be able to download TikTok from app stores and existing users will not be able to update the app, because the law prohibits any entity from facilitating the download or maintenance of the TikTok application. In a Dec. 13 letter, U.S. lawmakers told Apple (AAPL.O) , opens new tab and Alphabet’s (GOOGL.O) , opens new tab Google, which operate the two main mobile app stores, that they must be ready to remove TikTok from their stores on Jan. 19.
Cloud service provider Oracle could see some disruption to its work with TikTok. Oracle hosts TikTok’s U.S. user data on its servers, reviews the app’s source code and delivers the app to the app stores.
Google declined to comment, while Oracle and Apple did not respond to requests for comment.
TikTok’s 170 million users in the U.S. will likely still be able to use the app because it is already downloaded on their phones, experts say. But over time, without software and security updates, the app will become unusable.
Some users have begun posting TikTok videos instructing others on how to use virtual private networks (VPNs), which mask an internet user’s location, as a way to circumvent the possible ban.
Content creators who have built businesses from their TikTok followings are preparing for the worst. Nadya Okamoto, who has 4.1 million followers and founded August, a menstrual products brand, said TikTok helped her business grow organically through viral videos. A TikTok ban could force her and other small businesses to spend more on marketing and raise their costs.
"It's very stressful," she said. "If TikTok goes away, we'll be okay, but it is going to be a hard hit."
TikTok’s 7,000 employees in the U.S. are still trying to figure out their fate. After a U.S. appeals court upheld the sell-or-ban law on Dec. 6, pessimism spread among staffers who began worrying about layoffs, said one current employee.
But the company has continued to make job offers for new roles, prompting some confused job seekers to seek advice on Blind, an anonymous forum for employees to discuss companies.
One user posted on Blind that they received a job offer from ByteDance in San Jose, California, starting in February. Others commented on the post, counseling the user to accept the offer and use it as leverage in other interviews.
"I signed the offer and will wait and watch how the situation unfolds," the user said in the Blind post.
TikTok’s U.S. ad revenue is expected to total $12.3 billion in 2024, according to research firm Emarketer, and while that is much smaller than Instagram owner Meta Platforms (META.O) , opens new tab, advertisers say TikTok’s devoted user base means some brands will try to advertise beyond Jan. 19.
“The ongoing assumption is the app might not be updatable, but you’ll see a groundswell of usage,” said Craig Atkinson, CEO of digital marketing agency Code3. The app’s ecommerce feature TikTok Shop, which lets users purchase products directly from videos, has no direct competitor that advertisers can easily switch to, Atkinson said, adding that his agency was signing new contracts with clients to build TikTok Shop campaigns even as of late December.
Some advertisers may continue spending beyond Jan. 19 on TikTok and reevaluate if the app sees declining usage or performance, said Jason Lee, executive vice president of brand safety at media agency Horizon Media.
TikTok has repeatedly said it cannot be sold from ByteDance. That hasn’t deterred billionaire businessman Frank McCourt, a former owner of the Los Angeles Dodgers baseball team who said he has secured $20 billion in verbal commitments from a consortium of investors to bid for TikTok.
McCourt has not yet spoken with ByteDance, but said he believes the Supreme Court will uphold the law requiring TikTok’s divestment, after which the parent company would be more open to sale discussions.
McCourt and his team have had "preliminary conversations" with members of the incoming administration of President-elect Donald Trump, who had tried to ban TikTok during his first term in the White House but has since reversed his views, and are also seeking a CEO to lead the app. McCourt's business plan for TikTok includes migrating the app onto open-source technology and earning revenue through ecommerce and licensing data for AI training.
Billionaire Frank McCourt Leads Formal Offer To Buy TikTok—Here’s Everything We Know As Ban Looms
The People's Bid for TikTok, a project a spearheaded by Project Liberty founder and billionaire investor Frank McCourt, has delivered a proposal to the video app's Chinese parent company ByteDance to buy TikTok's U.S. assets ahead of a ban on the popular social media app set to take effect Jan. 19.
Get Forbes Breaking News Text Alerts: We’re launching text message alerts so you'll always know the biggest stories shaping the day’s headlines. Text “Alerts” to (201) 335-0739 or sign up here.
The ban against TikTok could become effective as early as Jan. 19 unless ByteDance commits to selling TikTok to another company or the Supreme Court overturns the federal law behind the ban. The court is expected to hear oral arguments Friday.
A range of companies have shown interest or been rumored to consider a purchase of TikTok. Project Liberty, the group leading The People’s Bid For TikTok, has built a consortium to purchase TikTok that includes O’Leary and Guggenheim Securities. The People’s Bid website notes it is not interested in acquiring TikTok’s algorithm, which ByteDance has shown no intent on selling. TikTok did not immediately respond to Forbes’ request for comment on The People’s Bid. Amazon has also been identified as a potential buyer, with experts pointing to TikTok and Amazon’s deepening ties, such as the announcement of a partnership this year allowing users to browse and purchase products from Amazon on TikTok. Amazon also became the third-largest advertiser on TikTok this year in the U.S. Oracle and Walmart could potentially make a joint bid for TikTok, as the two companies joined forces to buy the app in 2020 before reportedly being stopped by the Biden administration over security concerns. Microsoft could return to the table for TikTok after also trying to buy the app in 2020, though Microsoft CEO Satya Nadella said he was “happy with what I have” after talks fell through. Video-sharing platform Rumble publicly offered to buy TikTok early this year and could reenter the conversation, having said it was previously “ready to join a consortium with other parties seeking to acquire and operate TikTok inside the U.S.” China, which has vowed to block the sale of TikTok’s algorithm, would have to approve a sale of TikTok to another company, though the country is unlikely to do so.
McCourt, worth an estimated $1.4 billion as of Thursday, is an investor and entrepreneur with roots in his family's Boston-based construction business founded five generations ago. He bought the Los Angeles Dodgers in 2004 and sold it eight years later in what was the largest sports sale at the time, and has invested the proceeds into real estate, sports, tech and media. He has since invested $500 million to Project Liberty, an organization that advocates for data privacy.
Yass, who has an estimated net worth of $49.6 billion, is a GOP megadonor and a major investor in TikTok. He reportedly met with Trump and became possibly the biggest influence behind Trump’s switch from attempting to ban the app to later opposing its removal.. The co-founder of global trading firm Susquehanna International Group, which owns about 15% of ByteDance, Yass owned a $33 billion stake in TikTok as of this March and has financially backed conservative lawmakers opposing the ban, such as Sen. Rand Paul, R-Ky., and Rep. Thomas Massie, R.-Ky., donating $24 million and $32,200 to each, respectively, according to The Wall Street Journal. Yass has reportedly threatened to stop donating to Congress members who support the ban against TikTok, which would threaten his multi-billion dollar investment in the app. The billionaire has donated millions of dollars to conservative PACs such as Club For Growth Action ($16 million), the Congressional Leadership Fund ($10 million) and the Protect Freedom PAC ($6 million).
Potentially, though his options are limited. The Supreme Court agreed to hear arguments in January, meaning Biden’s Justice Department will defend the law in court instead of Trump’s Justice Department, which the president-elect could instruct to not enforce the law if the Supreme Court decides to uphold the ban before he takes office. However, even if Trump could ask the Supreme Court not to push for the ban, the move may lack the impact his administration would aim for, as Apple, Google and Oracle could still drop TikTok since they would risk financial penalties if they kept the app online and Trump later reconsidered his position on TikTok. Former Justice Department official Alan Rozenshtein wrote in a Lawfare op-ed that Trump could also lobby Congress to repeal the ban, though in doing so he would have to overcome the law’s bipartisan support. Additionally, Trump could allow TikTok to go down and bring the app back to app stores and the internet with a one-time, three-month extension that would potentially give time to help facilitate a sale of TikTok.
All of Americans’ TikTok user data could be moved to China in the event that the app is banned from the U.S. A precedent was set for such a move in 2020, when TikTok operations ended in India and left the app and ByteDance with access to millions of Indian users’ data years after the shutdown, according to Forbes.
About 170 million. That is how many Americans used TikTok as of April, according to the app.
At the heart of the federal government's issue with TikTok is national security and data privacy concerns linked to the app and its ties to China. U.S. officials have claimed the Chinese Communist Party could use the app to spy on Americans or influence public discourse. TikTok has shot down claims it is beholden to the Chinese government. The app’s CEO told Congress this year he “disagrees with the characterization" that the platform is spying on Americans and said TikTok is committed to protecting Americans’ data. After the law against TikTok was signed by Biden this year, the app said the requirement to sell itself is “illusory to the point of being no alternative at all.” Experts and reporting by Forbes have shown ByteDance and TikTok are significantly intertwined, as former National Security Agency general counsel Glenn Gerstell told Forbes this year: “There's no way to take the U.S. piece out of TikTok and sell it to someone.” ByteDance has tried to quell concerns about TikTok by noting 100% of U.S. traffic was routed to Oracle and U.S. Digital Service infrastructure in the U.S as of 2022. It has also claimed it is roughly 60% owned by institutional investors including the Carlyle Group, General Atlantic and Susquehanna International Group. However, Forbes’ reporting has revealed that ByteDance has used TikTok to spy on journalists and TikTok mishandled sensitive data, including financial information, Social Security numbers and personal contacts of creators, advertisers, celebrities and politicians.
Supreme Court Will Hear TikTok Ban This Week—Here’s What To Expect (Forbes)
Who Is Frank McCourt, The Billionaire Trying To Buy TikTok? (Forbes)
Why A Powerful U.S. Court Thinks The TikTok Ban Doesn’t Violate The 1st Amendment(Forbes)
The TikTok Law Gives You A Right To Your Data. Here’s How To Request It. (Forbes)
If Trump Wants To ‘Save’ TikTok, He Might Need It To Get Banned First (Forbes)
Congress Warns Apple And Google They Must Ban TikTok In January (Forbes)
If TikTok Is Banned, Americans’ Data Could End Up Back In China (Forbes)
TikTok Asks Supreme Court To Stop Federal Ban (Forbes)
TikTok Spied On Forbes Journalists (Forbes)
TikTok’s China Problem (Forbes)
CORRECTION (1/9): This story has been updated to note Project Liberty is not a non-profit. The Project Liberty Institute is the organization’s non-profit arm.
TikTok is one step closer to being banned in the US
TikTok has lost its bid to strike down a law that could result in the platform being banned in the United States.
A US appeals court upheld the law in a ruling Friday. Denying TikTok’s argument that the law was unconstitutional, the judges found that the law does not “contravene the First Amendment to the Constitution of the United States,” nor does it “violate the Fifth Amendment guarantee of equal protection of the laws.”
The ruling means that the platform is one step closer to facing a US ban — unless it can convince Chinese parent-company ByteDance to sell and find a buyer — starting on January 19, 2025. After the deadline, US app stores and internet services could face hefty fines for hosting TikTok if it is not sold. (Under the legislation, Biden may issue a one-time extension of the deadline.)
In a statement, TikTok indicated it would appeal the decision.
“The Supreme Court has an established historical record of protecting Americans’ right to free speech, and we expect they will do just that on this important constitutional issue,” said company spokesperson Michael Hughes. “Unfortunately, the TikTok ban was conceived and pushed through based upon inaccurate, flawed and hypothetical information, resulting in outright censorship of the American people. The TikTok ban, unless stopped, will silence the voices of over 170 million Americans here in the US and around the world on January 19th, 2025.”
ByteDance has previously indicated it will not sell TikTok.
President Joe Biden signed a bill in April that requires the platform to be sold to a new, non-Chinese owner or be banned in the United States, following years of concern on Capitol Hill that ByteDance poses a national security risk. In particular, lawmakers have worried that ByteDance could share user data with the Chinese government for surveillance, or that the Chinese government could force the company to TikTok’s algorithm to spread propaganda.
TikTok sued to block the law in May, arguing that it infringed on the free speech of its more than 170 million American users and unfairly singled out the platform. The court consolidated that lawsuit with claims from a group of individual TikTok creators.
In a hearing in September, attorneys for the US government argued that TikTok’s algorithm is controlled by its Chinese parent company and could be used to influence American users.
In their ruling, a three-judge panel at the US Court of Appeals for the District of Columbia Circuit acknowledged that TikTok’s American users “create and view all sorts of free expression and engage with one another and the world.”
However, they wrote, “in part precisely because of the platform’s expansive reach, Congress and multiple Presidents determined that divesting it from the (People’s Republic of China’s) control is essential to protect our national security.”
The court’s ruling Friday largely deferred to Congress, finding that lawmakers acted within their constitutional powers and followed appropriate procedure in crafting the TikTok law. The legislation “narrowly” addressed the specific problem of TikTok’s China ties, the judges said, and “does not suppress content or require a certain mix of content.”
“People in the United States would remain free to read and share as much PRC propaganda (or any other content) as they desire on TikTok or any other platform of their choosing,” the judges said. “What the Act targets is the PRC’s ability to manipulate the content covertly. Understood in that way, the Government’s justification is wholly consonant with the First Amendment.”
Unimpressed with TikTok’s counterarguments, the judges dismissed the company’s objections to the US government’s national security concerns. TikTok only “quibbles” with how US officials have characterized its data practices, they said, and TikTok’s defense of its data collection “misses the forest for the trees.”
A key flashpoint in the case had been a proposed deal with US national security officials that TikTok claimed would have resolved the potential spying concerns. During the litigation, TikTok implied that the US government acted in bad faith by pursuing negotiations for months before suddenly cutting off communication and then backing the legislation that Biden ultimately signed. US government lawyers, meanwhile, responded that the draft deal was insufficient to resolve the security concerns.
On Friday, the judges sided with the US government on the deal negotiations, saying they “can neither fault nor second guess” the determination by US officials that the draft deal with TikTok didn’t go far enough.
Emarketer principal analyst Jasmine Enberg described the ruling as a “major setback, but not yet the end of the road for TikTok.”
“If an appeal to the Supreme Court also doesn’t work out in TikTok’s favor and the ban is enforced, it would cause major upheaval in the social landscape, benefitting Meta, YouTube and Snap, while hurting content creators and small businesses that rely on the app to make a living,” Enberg wrote in an email.
In a statement following the ruling, Patrick Toomey, deputy director of ACLU’s National Security Project, said the “ruling sets a flawed and dangerous precedent.”
“Banning TikTok blatantly violates the First Amendment rights of millions of Americans who use this app to express themselves and communicate with people around the world,” Toomey said. “The government cannot shut down an entire communications platform unless it poses extremely serious and imminent harm, and there’s no evidence of that here.”
TikTok users also quickly reacted to the ruling on Friday morning.
“This is nuts,” one user said in a video posted to the platform. “I don’t want (Meta CEO) Mark Zuckerberg to own TikTok, that won’t make me feel better.” (There is no indication that Zuckerberg, who has his own TikTok-like feature in Instagram Reels, would seek to buy the platform from ByteDance, or that any effort to do so would pass muster with US antitrust officials.)
“I still have my hopes that TikTok will not get banned in the United States but, currently, it doesn’t look good,” another user said.
If TikTok is unable to successfully appeal or spin off from ByteDance, the ban could go into effect one day before the inauguration of President-elect Donald Trump.
Although it was Trump who first tried to ban TikTok in the United States during his previous term, he has more recently suggested that he no longer wants to ban the app.
In March, Trump posted on Truth Social that he opposed a ban of TikTok because it would only bolster its industry rival, Facebook, and Zuckerberg, whom Trump has accused — without evidence — of interfering in the 2020 presidential election, and threatened with “life in prison.” (Zuckerberg, for his part, has been working to build bridges with Trump, congratulating him on his 2024 election victory and meeting with Trump at Mar-a-Lago.)
Trump added in June — in a video posted to the platform itself — that he would “never ban TikTok.”
However, it’s not clear whether he’ll be able to undo the law, or find a way around enforcing it.
This story has been updated with additional details and context.
