With the TikTok ban taking effect in January, President-elect Donald Trump once again waded into the debate over the app’s future this past weekend.
Trump said A lot more convenient notes on TikTok in the last yearNow appealing to the Supreme Court Delaying the implementation of a possible banWhich is going to be effective from January 19 In April 2024, Congress passed a law banning “applications controlled by foreign adversaries” from platforms such as the Apple and Google App Stores, which would effectively force TikTok’s parent company ByteDance to sell the app or see it banned in the United States.
The legislation has received widespread bipartisan support amid national security concerns about Chinese government surveillance and interference, but has been challenged on First Amendment grounds. Before Trump’s weekend request, the Supreme Court had already agreed to hear a case about the ban on an accelerated schedule and will consider oral arguments on Jan. 10.
Now, Trump is calling for a pause in policy to give him time to find oneNegotiated decision“
Trump’s latest statement is the latest indication that he is interested in protecting the country app, despite previously supporting a ban itself. This change of heart can be due to several factors including: TikTok offered him a way to reach young male voters During the election – he gave some advice When asked about the ban — and that its biggest donor, Jeff Yass, is a big investor in the app’s parent company. Regardless of the rationale, he has signaled multiple times now that he wants to advocate for the app’s survival.
“I have a little warm place in my heart. I’ll be honest,” He said in mid-December.
If the Supreme Court upholds the law, there are several ways Trump could try to save the app, former Justice Department attorney Alan Rosenstein told Vox. He notes that the way the policy is written gives the president significant discretion over how it’s interpreted, meaning Trump could direct his attorney general not to enforce the law or even say ByteDance canceled the app when it didn’t.
Vox sat down with Rosenstein, also a University of Minnesota law professor who specializes in national security and technology, to walk through these possible scenarios and how likely each of them is. Broadly, Rosenstein notes, the president-elect has broad authority that he can use to protect TikTok in some form.
This interview has been edited and condensed for clarity.
Li Zhu
Can the Supreme Court actually suspend or delay the law?
Alan Rosenstein
Yes, because the Supreme Court can do anything, but they should not do it based on the existing law.
Li Zhu
Can you elaborate on that?
Alan Rosenstein
In order to suspend the statute, to prevent it from taking effect, the general standard is that the person seeking the stay must show a reasonable prospect of success on the merits. So it’s not enough to just say, “Hey, this law is going into effect, please stop it so I can challenge it.” It’s, “I’m probably going to win anyway. So please stop it when I believe you that, in fact, I will win.”
Li Zhu
Trump’s argument isn’t that he’ll win if the law is repealed. It’s just that he wants time to try to navigate the situation and come up with a different resolution.
Alan Rosenstein
Yeah, that’s not exactly how it works.
Li Zhu
If the Supreme Court decides to overturn the law or stop it – can we expect it to do so before the January 19 deadline?
Alan Rosenstein
What the Supreme Court can do, and I suspect it will, and that’s why they’ve timed it this way, is they’re going to do oral arguments, they’re going to go back, they’re going to vote. I suspect there will be at least five votes to uphold the law. The Supreme Court will announce it immediately or next day or two weeks later. And then they’ll say an opinion is coming.
We will know the answer very soon. We won’t know the reason for some time.
Li Zhu
Will users still be able to access the app when the ban takes effect on January 19?
Alan Rosenstein
The law prohibits app stores from distributing the app, but app stores don’t have to go into your phone and delete the app. So if you have apps, you have apps.
The big problem is actually around Oracle, the cloud service provider. So TikTok runs on Oracle servers in the US, like you go to TikTok.com, right? The machine you are accessing is owned and operated by Oracle, just like the actual machine. And so, on January 20th, maybe Oracle shuts down those computers because it has to.
So what happens? Presumably, TikTok, if it thinks it’s going dark, will have a contingency plan to move its services from US cloud service providers to global cloud service providers … so there are all these technical questions.
Li Zhu
The other problem is that if there are no updates on TikTok over time, it eventually becomes unusable and obsolete, right?
Alan Rosenstein
That’s the theory.
Li Zhu
If the Supreme Court decides to uphold the law, what ways do you see Trump being able to step in and save the app?
Alan Rosenstein
So number one, he can get Congress to repeal the law. It would obviously be the cleanest and most effective thing he could do, but I doubt he would be able to do it. The legislation passed with broad bipartisan consensus. It would have to give Congress back a vote they didn’t take a year ago, and I don’t think it has the votes. I don’t think he really wants to spend his political capital in his first 100 days. He is already having trouble doing anything.
The second thing he can do is instruct his attorney general not to enforce the law. The law works by fining app stores and cloud service providers that work with TikTok up to $5,000 per user, and he can only direct [prospective] Attorney General Pam Bondi for not enforcing the law. This sort of thing is his constitutional right. But the problem is that the law will still be in effect and these companies will still violate it. So if you’re a general counsel at Apple and you say, “Hey, I read on Truth Social that Trump isn’t going to enforce the law,” I would say don’t bank on it for obvious reasons.
The third thing he could have done was to declare that the law no longer applied. And the way he can do this is through the provisions of the Act which define what constitutes a qualified alienation. [Editor’s note: As one part of the law reads, “The term ‘qualified divestiture’ means a divestiture or similar transaction that—(A) the President determines, through an interagency process, would result in the relevant foreign adversary controlled application no longer being controlled by a foreign adversary.”]
If you focus on those first few words [of the statute]”The President determines,” which raises some possibilities depending on how you read the statute.
[One way] It reads to say that the law gives the president a lot of discretion in what counts as a “qualified deviation.” In that view, the president — especially if ByteDance moves the paperwork around, transfers some assets from Company A to Company B, essentially giving Trump enough legal cover — to declare, “Well, I don’t think ByteDance owns TikTok anymore.”
Now, whether this is actually true is a separate question, but a determination that Trump makes under this provision may be difficult to challenge, even if it is not based on fact. The things that you can do most easily that will be most effective.
The fourth thing he can do is try to facilitate a sale. Now, the problem was never on the demand side. Not that there aren’t American consumers who wouldn’t happily buy TikTok. It is on the supply side. [The question is]: Will the Chinese government allow ByteDance to sell TikTok with or without the algorithm? So I think as a diplomat it would really be Trump and trying to make a deal [Chinese leader] Xi Jinping. The thing is, I don’t know if Trump can do it. I don’t know if he wants to do it.
Li Zhu
Of the three options you mentioned, I’m curious: If there was a challenge to Trump claiming that the split happened but it really didn’t, what would that look like? Where does it come from and what causes it?
Alan Rosenstein
So the challenge would say: The law gives the president some role in determining apportionment, but it doesn’t allow the president to lie.
Now, the hard part is bringing the case itself. So there’s a principle in American law called standing, which is if you want to sue in federal court, at least, you have to be the right kind of person to sue based on the things you’re alleging. So specifically, you have to be strongly and uniquely hurt by something.
Well, who could be hurt, right? So it’s not just going to be a random person. It is not Congress. There are two categories I can think of. A TikTok competitor, so Mark Zuckerberg, can sue, saying, “I own the Instagram reel.” And competitors are allowed to sue when they think the government is illegally benefiting one of their competitors, but that would require Zuckerberg to go and sue Donald Trump, and all we know about Silicon Valley’s current posture is that they want to piss off. no the president
The other person who can sue is the injured party himself. So Apple and Oracle can sue, not to challenge the divestiture determination, but to clarify, in what’s called a declaratory judgment, legal obligations. But it could still make them sue and beat Trump, and that could upset Trump. So there’s a small universe of people who might sue, and they have other reasons that don’t necessarily want to sue.
Li Zhu
In theory, if one of the parties you mentioned decides to proceed with a lawsuit, how likely are you that there will be a successful lawsuit that upholds the law?
Alan Rosenstein
I think a lot depends on if it’s clear that Trump just announced an isolation where nothing happened. I think the court will probably strike it down. If ByteDance does something that probably does something like a divestiture at the margin, I can imagine the court deferring to the president saying, “Look, you know, the question of whether TikTok is controlled by a Chinese company is very fact-specific. It has to do with national security and foreign policy. Congress has given the president a role, and the president is playing that role. We’re not going to second guess it.”
Li Zhu
What can you see as the most likely scenario from here?
Alan Rosenstein
I think the Supreme Court will uphold the law. And then I think through some combination of some selling, maybe without the algorithm, and Trump announcing some things, maybe there will be something like TikTok that will continue. [in the US]But exactly what form is very unclear.
