Nine Days Before the Ban, TikTok Is Going to the US Supreme Court

With an impending “ban” set for Jan. 19, TikTok is heading to the Supreme Court just a little over a week beforehand to try to maintain its position in the U.S. Aside from potential help from the incoming presidential administration, this is likely the app’s last chance to avoid expulsion from the country’s app stores.

The news follows ByteDance’s previous lawsuit attempting to stop the so-called “TikTok ban,” where a panel of judges for the DC Circuit Court of Appeals decided to uphold the controversial law. That decision left TikTok with a little over a month to find a U.S. buyer or otherwise get the law overturned, or else major tech companies would be forced to stop carrying or updating its app.

ByteDance’s decision to take its arguments to the Supreme Court doesn’t come as a surprise. The company seems to be taking two approaches to avoid getting kicked out of the U.S.’s major platforms, and neither appear to be capitulating to finding a buyer (it’s unclear if China would allow such a move, anyway).

The most obvious strategy is the one we already know about. In a statement reported by Bloomberg shortly after the Appeals Court made its decision, TikTok spokesperson Michael Hughes wrote about the company’s intention to go to the Supreme Court, saying “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.”

That said, it seems ByteDance might also be holding closed door meetings with President-elect Donald Trump to argue for leniency. TikTok CEO Shou Zi Chew reportedly met with the politician at his Mar-a-Lago resort earlier this week, according to CNN’s Kaitlan Collins. While that might come as a surprise, Trump seems to have changed his tune on TikTok since signing an executive order attempting to force ByteDance to choose between a sale and a ban in 2020. Previously, he has posted to Truth Social that “If you get rid of TikTok, Facebook and Zuckerschmuck will double their business. I don’t want Facebook, who cheated in the last Election, doing better. They are a true Enemy of the People!” Following that, he promised to “save TikTok” while on the campaign trail.

Coincidentally, ByteDance investor Jeff Yass contributed more than $46 million to Republicans during this year’s election campaigns.

Trump is set to take office one day after the upcoming ban would take effect, but it’s within his discretion to choose how the law will be enforced. However, a relaxed enforcement could leave both the app and app stores in a tricky spot when it comes to future administrations.

Within the law as it stands now, the president does also have the power to extend the deadline by 90 days if it seems like significant progress is being made on a sale; however, given ByteDance’s stubbornness and the Biden administration’s role in signing the law, it is unlikely that the deadline will be extended before Trump takes office.

More news is sure to come on Jan. 10, when arguments in the nation’s highest court begin. Regardless, the court’s decision to take the case indicate that the fight is far from over, even as the eleventh hour approaches.

How did we get here?

In April, President Biden signed a bill into law that demanded what is essentially a ban on TikTok as it exists now in the United States. The House of Representatives passed the original bill back in March, while the Senate finally voted it in as part of a $95 billion aid package for Ukraine, Israel, and Gaza. The legislation was passed with overwhelming bipartisan support in both chambers, and the President quickly signed it shortly after.

What is the TikTok ban bill?

First and foremost, this bill doesn’t “ban” TikTok outright. Instead, it demands that ByteDance, TikTok’s Chinese-based parent company, divest its stake in the app to an American-owned company within nine months of it becoming law. President Biden can add another 90 days to that timeline if ByteDance appears to be making progress selling TikTok. (The House’s original bill had a shorter timeline of six months.) If ByteDance refuses, loses in court, and cannot find a buyer, then the app would face a ban in the U.S.; however, it wouldn’t be forcibly removed from phones. Rather, app stores would simply stop carrying it, and it would stop receiving updates, likely rendering it unusable in time. U.S.-based TikTok creators would also no longer be able to earn payments from it, and would stand to lose much of their audience. In short, its setting up American TikTok to become a ghost town.

It’s similar to the tactic the Trump administration took in 2020: Trump signed an executive order forcing ByteDance to choose between a sale or being banned. The courts blocked the order, however, and the Biden administration later revoked it, replacing it with an order to review more apps that could potentially compromise American security.

Why ban TikTok?

Lawmakers are increasingly concerned that TikTok’s direct ties to China puts American users’ data in jeopardy. These fears are not unfounded: In late 2022, ByteDance employees obtained the IP addresses of American journalists from their TikTok accounts, in an effort to discover the source of company leaks. Back in June, we learned that TikTok stores some user data from U.S.-based creators in China, after insisting the company keeps all American data within the United States.

TikTok likely doesn’t scrape more data from your smartphone than any other app you use, and Congress couldn’t care less about your privacy from an altruistic point of view. The government’s concern, however, is that unlike Meta or Google apps, your data isn’t being taken by an American company; rather, it’s potentially leaking to a foreign nation, one with a complicated, if not adversarial, geopolitical relationship with the U.S. That, in addition to a potential for China to influence the content American users actually see on their feeds, is fueling an urgency with many lawmakers to do something about the massively popular app. That’s why the government is OK with a sale to an American company—its data scraping could be more easily tracked or regulated.

Where do we go from here?

TikTok’s banishment is still not certain. Even assuming ByteDance loses in court or fails to barter some kind of deal with Trump, this is America: If there’s one thing we love in this country, it’s a good deal. As such, now that the bill is officially a law, you better believe the business interests in the U.S. will be trying their darnedest to be the American company ByteDance sells to, assuming it comes to that. The question is if TikTok would look the same afterwards.

We were seeing this play out before the Senate had even deliberated the bill: Former Activision CEO Bobby Kotick reportedly pitched the idea of buying TikTok at a dinner, which included OpenAI’s CEO Sam Altman. Former Treasury Secretary Steve Mnuchin is building a group of investors with the goal of acquiring the app. (Is it a prerequisite to be a “former” something in order to buy TikTok?) If not, even Shark Tank’s Kevin O’Leary told Fox News in an interview he’d like to buy the app. Perhaps Microsoft, which was in talks to buy TikTok under the Trump administration, will try again.

That said, who knows if ByteDance will actually sell, assuming it faces defeat in court? But it’ll certainly have its choice of buyer if interested.