A bipartisan pair of senators urged President Joe Biden to delay the federal ban on TikTok from taking effect, as the popular app could leave U.S. app stores in a month if the Supreme Court upholds the law banning it—but it’s unclear if Biden actually has the authority to delay the ban under the law, and the move could be challenged in court if he tries.
Participants hold signs in support of TikTok outside the U.S. Capitol Building on March 13 in ... [+]
Sen. Ed Markey, D-Mass., and Sen. Rand Paul, R-Ky., sent a letter to Biden Thursday arguing he should impose a 90-day extension delaying when the federal law takes effect, which is now scheduled for January 19.
The law requires TikTok to divest itself from Chinese-owned parent company ByteDance or else be banned from U.S. app stores, but the senators argue the company cannot divest itself “in that limited time” before the ban takes effect.
The ban’s status is now in limbo, as the Supreme Court will hear oral arguments in TikTok’s lawsuit challenging it on January 10 and decide the law’s legality, after a panel of lower court judges upheld it.
Even if the Supreme Court rules on the TikTok ban before it’s scheduled to take effect, the senators argued that still wouldn’t give TikTok enough time to separate from ByteDance, meaning, “Absent a judicial injunction, decision overturning the law, or action by [Biden], TikTok will soon be banned in the United States, causing its creators and users serious hardship.”
While the law does give the president power to extend the deadline for outlawing TikTok by 90 days, University of Minnesota law professor Alan Rozenshtein noted on X that provision likely wouldn’t apply here, as the president can only extend the deadline if there’s a clear path toward divestiture or significant evidence that the company is in the process of divesting itself from ByteDance—which so far isn’t the case.
If Biden—or President-elect Donald Trump, when he takes office—were to delay the deadline without TikTok actually taking any steps toward divesting, the move could be subject to litigation, Rozenshtein noted in a piece for Lawfare, as one of TikTok’s rivals could challenge the extension in court as unlawful, or one of the companies that has to comply with the ban, like Apple or Google, could ask for a court ruling declaring whether or not they legally have to take TikTok off their platform.
The White House has not yet responded to a request for comment on Markey and Paul’s letter, and it’s unclear if Biden would actually be willing to impose the 90-day delay, given that he signed the ban into law and his Justice Department defended it in court. As it stands now, the law is scheduled to take effect January 19 unless the Supreme Court rules before then to strike it down, or puts the law on pause while it deliberates. If the ban goes forward on January 19, Trump could step in and impose a 90-day delay once he takes office on January 20. He has not yet announced any plans to do so, however, and that would still face the same legal issues as Biden delaying it if TikTok still isn’t in the process of divesting itself from ByteDance.
TikTok has so far refused any possibility of divesting itself from ByteDance, saying in a court filing the move is “not possible technologically, commercially, or legally.” It remains to be seen if the company will stick with that position if the Supreme Court upholds the law, or if it will decide to find a new U.S. owner in the face of the ban actually taking effect. While ByteDance has also so far been resistant to selling TikTok, James Lewis, director of the Strategic Technologies Program at the Center for Strategic and International Studies, told NPR China may be more willing to negotiate with Trump and approve a sale of TikTok in exchange for Trump backing off his threat of high tariffs on Chinese imports.
While Markey and Paul are trying to keep the TikTok ban from taking effect, other lawmakers are doubling down on the policy and reminding companies they have to follow it. House China Select Committee chair John Moolenaar, R-Mich., and ranking member Raja Krishnamoorthi, D-Ill., sent letters to the CEOs of Apple, Google and TikTok last week noting the law is scheduled to take effect on January 19 and reminding them they “must take the necessary steps to ensure [their companies] can fully comply with” the ban. “Congress has acted decisively to defend the national security of the United States and protect TikTok’s American users from the Chinese Communist Party,” Moolenaar and Krishnamoorthi wrote in their letter to TikTok CEO Shou Zi Chew. “We urge TikTok to immediately execute a qualified divestiture.”
Biden signed the TikTok ban into law in April, with the law reflecting longstanding concerns by lawmakers on both sides of the aisle about national security issues involving the app and ByteDance’s ties to China. TikTok has long denied any wrongdoing or links to the Chinese government, but Forbes has reported on a number of concerns involving the company, including TikTok spying on journalists, promoting Chinese propaganda criticizing U.S. politicians, mishandling user data and tracking “sensitive” words. The law orders companies to remove TikTok from U.S. app stores or else face financial penalties, and says internet service providers cannot enable its distribution either, which TikTok has argued will cut off “the services that enable the TikTok platform to function, effectively shutting down TikTok in the United States.” TikTok and creators on the app challenged the law in court days after it was enacted, arguing it violated their First Amendment rights. The federal government maintained the move was necessary for national security, and a panel of federal appeals court judges agreed. The court upheld the law, ruling it does not violate TikTok’s First Amendment rights since all the content on the platform can stay up if the company just separates itself from ByteDance. TikTok appealed the case to the Supreme Court on Monday, after the appeals court said they wouldn’t pause the law while TikTok pursued an appeal, and the justices quickly ruled to take up the case and hear it on January 10.