TikTok ban will be Trump's first big test as US President

On Friday, the Supreme Court upheld a federal law requiring the popular social media app TikTok to divest from its China-based parent company, ByteDance, by Sunday or be banned.

By Barbara McQuade

US President-elect Donald Trump will be tested early when he takes his oath of office on Monday.

On Friday, the US Supreme Court upheld a federal law requiring the popular social media app TikTok to divest from its China-based parent company, ByteDance, by Sunday or be banned. The court rejected the social media company’s argument that the law violated the First Amendment rights of TikTok and its content creators. According to ByteDance's lawyers, on Sunday, the app will “go dark.”

Trump had urged the court to delay the deadline until he took office, giving him time to negotiate a deal. As president, it will be his duty to "take care that the laws be faithfully executed." That means enforcing the statute.

The ban, passed with large bipartisan support and signed into law by President Joe Biden in April, was designed to protect the private data of US users from a hostile foreign adversary.

During his first term, Trump issued an executive order prohibiting ByteDance from engaging in financial transactions in the US on the grounds that it posed a risk to national security because the app “automatically captures vast swaths of information from its users and is susceptible to being used to further the interests of the Chinese government.” Those sanctions were tied up in court and did not go into effect before Congress passed the current law.

However, as Trump prepares to return to the White House, he seems to have had a change of heart. Shortly before the law was passed, Trump spoke out against the ban, causing some critics to speculate that he was being transactional, seeking to curry favour with billionaire donor Jeffrey Yass, a 15 per cent-owner of ByteDance.

Trump also used the app with great success during the 2024 presidential campaign, amassing more than 14 million followers, and promised to “save TikTok.” He recently became cozy with TikTok Chief Executive Officer Shou Zi Chew, meeting with Chew at Trump’s Mar-a-Lago estate in December. He also invited Chew to sit on the dais at Monday’s inauguration.

Chew thanked Trump for his support in a video message Friday after the Supreme Court decision.

As the deadline approached, Trump sought to intervene in the Supreme Court case. Legal documents filed by his lawyers asked the court to delay its decision until he took office, in part because “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.”

On Friday, the Biden administration said it had no plans to initiate lawsuits enforcing the ban before Trump takes office on Monday. Trump said Friday he would decide whether the ban would go into effect. “Congress has given me the decision, so I’ll be making the decision.”

Not quite. While the statute authorizes the president to approve any “qualified divestiture” of TikTok from ByteDance, it does not permit him to simply allow the current arrangement to continue. The president can approve a divestiture only if it removes control from a foreign adversary. That means ByteDance must sell to a non-Chinese company.

Trump may instead try to stall the ban. The law authorizes the president to extend the deadline by 90 days if he certifies to Congress that “there are in place the relevant binding legal agreements to enable execution of” a sale. But we are not even close to reaching that status. To date, ByteDance has said the app is not for sale. It seems highly unlikely that Trump will be able to do either of those things by Monday. He reportedly was considering issuing an executive order on Monday, but an executive order cannot supersede the law.

If no divestiture or delay occurs, the Trump administration must enforce the statute. The law authorizes the attorney general to bring a civil suit against American companies offering the platform for download in their app stores or providing hosting services. Violators are subject to hefty penalties of $5,000 per user. For an app with 170 million users in the US, fines could reach billions of dollars. The risk of penalties is designed to incentivize compliance by essential service providers — but only if it is enforced.

Trump’s handling of the TikTok ban will indicate whether he can fulfill his duties as president to protect national security, even when it might be unpopular or conflict with his personal interests.