How did TikTok end up in the US Supreme Court? What happens next?

As the clocks tick down, what is the law targeting TikTok? Will it hold up in court? How will a ban on the platform be implemented? Take a look.

What is the law behind the de facto TikTok ban?

The law is the partial result of a perceived threat from China. The Biden administration and US lawmakers have expressed concerns that the Chinese government could demand that ByteDance hand over US user data under its national security laws. They worry that China could use this data to surveil Americans and push its propaganda by tweaking the algorithm of the video-sharing app.

In March 2024, the Office of the Director of National Intelligence released a report stating that China had allegedly used TikTok to influence the 2022 US midterm elections.

A month later, President Joe Biden signed the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA) into law after it was passed by the US Congress with considerable bipartisan support.

The legislation empowers the US federal government to impose a ban on any foreign-owned apps that are deemed to pose a threat to the country’s national security.

However, the provisions of the law do not directly target TikTok. Instead, the legislation concerns intermediaries like Apple’s App Store and Google’s Play Store that make it possible to download the app, as well as cloud service providers like Oracle.

Under the PAFACA, it is illegal for any such marketplace entities and internet hosting services to “distribute, maintain, or update (or enable the distribution, maintenance, or updating of) a foreign adversary controlled application.”

Notably, the law does not make it illegal for individual users in the US to access TikTok.

What were the key arguments made in the US Supreme Court?

TikTok, ByteDance, and a few American users of the app filed a lawsuit challenging the law in May 2024, arguing that the legislation suppresses the free speech of a majority of the population.

However, a lower court upheld the law as constitutional in December. TikTok then moved the Supreme Court seeking an emergency injunction to put the law on hold temporarily.

In the courtroom on January 10, lawyers for TikTok and its users argued that concerns of potential information manipulation by the Chinese government did not justify the law. “The government just doesn’t get to say ‘national security’ and the case is over […] It’s not enough to say ‘national security’ — you have to say ‘what is the real harm?’” Jeffrey Fisher, representing TikTok users, was quoted as saying by The New York Times.

The Biden administration, on the other hand, defended the law and contended that it allows for unrestricted speech on TikTok once the platform is freed from foreign control.

“TikTok, if it were able to do so, could use precisely the same algorithm to display the same content by the same users. All the act is doing is trying to surgically remove the ability of a foreign adversary nation to get our data and to be able to exercise control over the platform,” US Solicitor General Elizabeth Prelogar argued.

All nine Supreme Court justices reportedly appeared more skeptical of TikTok’s First Amendment arguments than the government’s case for the law. “The law doesn’t say TikTok has to shut down. It says ByteDance has to divest,” Justice Amy Coney Barrett was quoted as saying by Axios.

The Supreme Court is likely to deliver a verdict in the case this week, as per NYT.

What would a TikTok ban look like?

If the Supreme Court upholds the law and ByteDance fails to divest TikTok, the enormously popular app will no longer be available for download on iOS and Android devices.

As for users in the US who already have TikTok on their devices, the app is not going to disappear overnight. Instead, it could become harder to access the app as it starts to feel buggy and slow to operate.

It is also possible that users who try to open the TikTok app after January 19, will see a prompt indicating that the service is no longer available in the country. Indian users are shown a similar prompt as the central government banned TikTok in 2020 after border tensions with China escalated into deadly violence.

Even as workarounds such as ‘sideloading’ or using Virtual Private Networks (VPNs) are being floated on social media, it is likely that a potential TikTok ban will lead to new apps (like RedNote) and existing platforms (like Instagram) vying for its many displaced users.

Can Trump save TikTok?

The Supreme Court’s ruling is likely to leave TikTok counting to be saved by US President-elect Donald Trump, who will be sworn into office a day after the deadline, that is, January 20.

Trump has been ambivalent in his stance on banning TikTok. He spearheaded the initial effort to ban the app in 2020 via an executive order, which was later overturned by multiple federal courts.

But since then, he has become a staunch defender of the platform. Last month, Trump’s lawyers urged the Supreme Court to pause the TikTok ban so that the incoming president would have time to “resolve the dispute through political means.”

After taking office, Trump could urge the US Congress to repeal the divest-or-ban law, or he could direct the Department of Justice to not enforce the legislation. Legal experts also pointed out that Trump could “just declare” that TikTok has complied with the law after it takes certain steps.