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In one of his first executive orders on Monday (January 21), US President Donald Trump announced relief for the Chinese-owned video app TikTok. Shortly after TikTok went dark in the US on Saturday, Trump had said he would give more time to its owner ByteDance to find a US-based buyer for the video-sharing app. TikTok went live again in the United States on Sunday with a message greeting users: “As a result of President Trump’s efforts, TikTok is back in the U.S.!”
Trump’s executive order said, “I am instructing the Attorney General not to take any action to enforce the Act for a period of 75 days from today to allow my Administration an opportunity to determine the appropriate course forward in an orderly way that protects national security while avoiding an abrupt shutdown of a communications platform used by millions of Americans.”
ByteDance has been forced to look for a buyer after the US Supreme Court (SCOTUS) last week upheld the law forcing either a ban or a sale of TikTok.
The standoff between TikTok and the US government began during Trump’s first term as President. In August 2020, he issued an executive order barring further transactions between persons in the US and ByteDance (or its subsidiaries).
The order stated that TikTok collects ‘vast swaths’ of personal information from its users, including location data and browsing history, claiming that “the spread in the United States of mobile applications developed and owned by companies in the People’s Republic of China (China) continues to threaten the national security, foreign policy, and economy of the United States”.
This order was rescinded by the Joe Biden administration in 2021.
Fast forward to April 2024 and Biden signed the ‘Protecting Americans from Foreign Adversary Controlled Applications Act’ into law. The law bans applications controlled by ‘a foreign adversary’ (which includes China) — specifically mentioning ByteDance and Tiktok — from operating in the US unless there is a ‘qualified divestiture’.
This effectively requires ByteDance to sell control over TikTok’s operations in the US, such that the President may determine that the app is “no longer being controlled by a foreign adversary” or that there is no “operational relationship” between the new United States platform and the “formerly affiliated entities” (such as ByteDance) that are “controlled by a foreign adversary”.
The Act gave ByteDance time till January 19, 2025 to either find a buyer or face a ban.
ByteDance challenged the Act before the US Court of Appeals for the District of Columbia Circuit in May 2024, arguing that a sale of this kind is “simply not possible: not commercially, not technologically, not legally”.
It argued that the law suppresses the free speech of a large portion of the population and that a standalone US platform would be an “island” with a limited content pool, undermining its commercial viability. It also stated that the Chinese government “has made clear that it would not permit a divestment of the recommendation engine that is a key to the success of TikTok in the United States”.
The court upheld the ban in December 2024, leading to an appeal before the SCOTUS.
The SCOTUS’ unanimous decision upholding the Act hinged on one key question. Is the Act a “content-based” law aimed at curbing a specific kind of content on TikTok because of a particular topic or message, or is it a “content-neutral” law that is meant to further government interests “unrelated to the suppression of free speech”.
For a content-based law, the SCOTUS observed that it would use the more rigorous “strict scrutiny” test to determine if the law was constitutional. Here, the court would first see if there is a ‘compelling government interest’ to suppress free speech, before seeing if the law proposes the least restrictive means to serve this interest. However, for a content-neutral law, the SCOTUS said the lower “intermediate scrutiny” standard would apply, where the court only determines if there is a government interest and if the law furthers this interest.
The SCOTUS ruled that the TikTok ban was a content-neutral law and that the lower scrutiny standard would apply. It held that the Act does not target a particular kind of content.
Instead, the SCOTUS held that the Act has a content-neutral justification i.e. “preventing China from collecting vast amounts of sensitive data from 170 million U. S. TikTok users”. It held that the sheer scale of personal data collection by TikTok along with its “susceptibility to foreign adversary control” justifies the Act’s requirement for a ban or a sale even without specific proof of the Chinese government using TikTok as a means for intelligence gathering.
Though Trump fired the first shot in the fight to ban TikTok during his first term, he has since changed his tune and has begun supporting efforts to keep the platform alive in the US. In December, his lawyers urged the Supreme Court to pause the ban so President Trump could “resolve the dispute through political means” once he assumes office. On Sunday, Trump announced he would issue an executive order to give ByteDance more time to complete a sale that would satisfy the requirements of the law.
Forbes has reported that several billionaires and companies are interested in a deal with ByteDance, including AI search engine startup Perplexity AI, investor Kevin O’Leary, and Amazon. It also reported that the Chinese government is interested in selling the platform to Tesla CEO and co-lead of the newly created Department of Government Efficiency (DOGE), Elon Musk.
