By Sapna Maheshwari
TikTok is one step closer to disappearing in the United States after a panel of federal judges unanimously upheld a new law that could ban the popular Chinese-owned video app by mid-January.
The three judges in the US Court of Appeals for the District of Columbia Circuit denied TikTok’s petition to overturn the law. The decision on Friday (US time) could be a death blow for the app in one of its biggest markets. More than 170 million Americans use TikTok to entertain and inform themselves, turning it into a cultural phenomenon.
The looming loss of the app in the US had spurred concern from free speech advocates and from the creators whose income depends on TikTok.
TikTok says the Chinese government would block any sale of the business. Credit: Bloomberg
The decision also raises new questions for President-elect Donald Trump, who has repeatedly signalled his support for the app but who doesn’t have a clear path for rescuing it under the new law, which is scheduled to go into effect the day before his inauguration.
The law, signed in April, requires TikTok’s Chinese owner, ByteDance, to sell the app to a non-Chinese company by January 9 or face a ban in the United States. TikTok, which has raised national security concerns among politicians since 2020 because of its ties to China, has said a sale is impossible, in part because it would be blocked by the Chinese government.
The company argued that the law unfairly singled out TikTok and that a ban would infringe on the First Amendment rights of American users.
The judges disagreed with TikTok’s argument. They said the law was “carefully crafted to deal with only control by a foreign adversary” and didn’t violate the First Amendment.
“The government acted solely to protect that freedom from a foreign adversary nation and to limit that adversary’s ability to gather data on people in the United States,” the judges wrote on Friday.
American lawmakers and intelligence officials have said that TikTok poses a national security threat under ByteDance. They say the Chinese government’s oversight of private companies would allow it to use the app to retrieve sensitive information about Americans or to spread propaganda, though they have not publicly shared evidence that this has occurred.
They have also noted that apps like Facebook and YouTube are banned in China and that the country does not allow TikTok there.
TikTok said it would appeal the decision to the Supreme Court, which it expected to rule differently.
“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,” Michael Hughes, a spokesperson for TikTok, said in a statement. He called the ban “outright censorship of the American people”.
Attorney-General Merrick Garland called the ruling “an important step in blocking the Chinese government from weaponising TikTok”.
Exactly what happens next for the app is unclear, as there is no guarantee that the Supreme Court will take up the case.
Anupam Chander, a professor of law and technology at Georgetown University, is among the experts who expect the Supreme Court will take up the case and extend TikTok’s future in the US.
“The Supreme Court, not wanting to see this app go dark on January 19, will freeze the law, and then this gets handed over to the Trump administration and a Trump Department of Justice to figure out what they want to do,” he said.
The US is concerned about the potential of a Chinese entity to exploit its user base – about 170 million of TikTok’s billion-plus monthly users are Americans – to try to influence US government policy.Credit: AP
If the company doesn’t sell, its short-term hope for continuing in the United States will be a court-ordered injunction that would pause the law from taking effect.
Paul Gallant, a policy analyst for financial services firm TD Cowen, recently said he expected the Supreme Court to take up the appeal and rule by June.
On Friday Chief Judge Sri Srinivasan acknowledged the app’s popularity and noted that without a sale, many Americans could “lose access to an outlet for expression, a source of community and even a means of income”.
But, he added: “Congress judged it necessary to assume that risk given the grave national security threats it perceived. And because the record reflects that Congress’ decision was considered, consistent with long-standing regulatory practice, and devoid of an institutional aim to suppress particular messages or ideas, we are not in a position to set it aside.”
Based on the law’s timeline and language, it is not clear how Trump could save TikTok. A spokesperson for his team said in November that “he will deliver” on a plan to rescue the app but provided few details about how he would do so.
It would take an act of Congress to repeal the law. Some experts have speculated that Trump could ask his new attorney-general to refrain from enforcing it. But that would put technology companies like Apple and Google in a tricky spot.
The law penalises companies for distributing or updating TikTok on their app stores, so tech giants would have to trust in the Trump administration’s potentially mercurial promises of non-enforcement and prepare for that to change under a different president.
The law also gives the president the authority to decide whether a sale or a similar transaction successfully removes TikTok from “foreign adversary” control. Some experts speculated that ByteDance could make some structural changes to appease those requirements. If Trump blessed them, he could allow the app to continue operating in the US.
And despite Trump’s promises, his commitment to TikTok’s future is uncertain, given his hawkish stance on China. In 2020, he sought to block TikTok in the US and force its sale to a group of American companies, citing similar national security concerns to those raised this year by Congress.
President-elect Donald Trump may yet save TikTok, but that would put Apple and Google in a tricky spot.Credit: Bloomberg
Congress passed the law after being swayed by several closed-door intelligence briefings that outlined the threats posed by TikTok’s ownership. There is a chance that Trump changes his mind about the app if he is briefed on that same information once in office, said Sarah Kreps, a professor at the Tech Policy Institute at Cornell University.
“It’s clear that the legislators thought there was enough evidence supporting a danger, and there was a willingness to set free speech concerns aside in favour of national security,” she said.
Overall, she said it remained to be seen which version of Trump would take up the TikTok question.
“Is it going to be Trump the dealmaker or Trump the China hawk?” she said. “This is so complicated.”
Free speech advocates quickly condemned the decision and predicted that the Supreme Court would rule differently. The American Civil Liberties Union called it “a major blow to freedom of expression online” with dangerous implications for other platforms under foreign ownership.
Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University, wrote in a post on Bluesky that the ruling was “deeply misguided” and “gives the government sweeping power to restrict Americans’ access to information, ideas, and media from abroad”.
But Gallant said in a note on Friday that the unanimous ruling from the three judges suggested that the Supreme Court would also uphold the decision. He noted that the Washington, DC, court judges were made up of two conservatives and one liberal, similar to the Supreme Court’s make-up.
While TikTok and ByteDance have said that a sale is not possible, there is a chance that the ruling will create new movement in that arena.
Steven Mnuchin, a Treasury secretary during Trump’s first term, said in March that he was “trying to put together a group to buy TikTok because they should be owned by US businesses”.
In May, billionaire Frank McCourt also expressed interest, which he reiterated on Friday. Other rumoured suitors have included Bobby Kotick, the former chief executive of video game company Activision Blizzard. In 2020, possible buyers included Microsoft and the cloud computing company Oracle.
But a potential sale faces major hurdles – financially, technically and politically. TikTok could cost more than $US200 billion ($313 billion), and many potential buyers would most likely run into antitrust scrutiny. The Chinese government also issued export restrictions in August 2020 that would probably give Beijing the power to block a sale.
Srinivasan expressed scepticism about the argument that China would block a sale.
“Congress, of course, need not legislate around another country’s preferences to exercise its own powers constitutionally – much less the preferences of a designated foreign adversary,” he wrote.
This article originally appeared in The New York Times.