On Friday morning, the Supreme Court finally weighed in on the imminent TikTok ban, which is scheduled for January 19, the day before Donald Trump once again takes office. The decision was unanimous and, after a public hearing earlier in the week, unsurprising: The law stands, and TikTok’s deadline remains imminent.
Setting aside questions about the law’s merits and the precedent it might set— not to mention the path it might clear for other targeted media bans — the TikTok ban resembles (if you squint so hard your eyes are nearly closed) a rare example of the government coming together and working across party lines and branches to get something done. A quick recap: As TikTok grew, a small group of lawmakers raised concerns about its connections to the Chinese government, citing intelligence and credible media reports. Soon, President Trump took up the cause and attempted to ban the app via executive order shortly before leaving office. The Biden administration set aside Trump’s approach but continued putting pressure on TikTok, citing most of the same concerns. At the same time, a bipartisan group of lawmakers worked together to write a forced sale into law. Their bill passed the house 360-58, Joe Biden signed it, and Republicans and Democrats congratulated themselves on a job well done. This very special episode of Schoolhouse Rock! wasn’t over yet: Here comes the Supreme Court to review the law and make quadruple sure it’s constitutional.
Wow! Who says the government can’t get things done anymore? Let’s check in with the power players that made this thing happen. First up we’ve got Donald Trump, who deserves more credit than anyone for getting it off the ground. According to the Washington Post:
President-elect Donald Trump is considering an executive order once in office that would suspend enforcement of the TikTok ban-or-sale law for 60 to 90 days, buying the administration time to negotiate a sale or alternative solution — a legally questionable effort to win a brief reprieve for the Chinese-owned app now scheduled to be banned on Sunday nationwide…
…“I have a warm spot in my heart for TikTok,” Trump said last month.
Huh. Well, how about all those lawmakers who reached across the aisle and expended political capital?
Ah. Okay, well, how about the president who signed this bill into law last April?
WASHINGTON (AP) — President Joe Biden won’t enforce a ban on the social media app TikTok that is set to take effect a day before he leaves office on Monday, a U.S. official said Thursday, leaving its fate in the hands of President-elect Donald Trump.
“We’re all trying to find the guy that did this,” Washington seems to be saying. Only a few lonely voices are piping up to actually take credit. Tom Cotton, an early TikTok antagonist, is pleased:
ByteDance and its Chinese Communist masters had nine months to sell TikTok before the Sunday deadline. The very fact that Communist China refuses to permit its sale reveals exactly what TikTok is: a communist spy app. The Supreme Court correctly rejected TikTok’s lies and propaganda masquerading as legal arguments.
Each of these awkward contortions around TikTok comes with its own backstory. Trump, who at one point mostly seemed aware of TikTok as a platform people used to troll him, has since found out that many of its users — who represent a significant cross-section of the American public — support him. (There’s also the fact that Republican mega-donor and Trump supporter Jeff Yass is a major investor in the platform.) And while some lawmakers sincerely backed the TikTok bill on national-security grounds, many of them supported it, or convinced themselves to support it, for less clearly articulable reasons: general fears of “brainwashing”; a Democratic instinct to run to the center or reclaim turf from Trump; full technological illiteracy; rote Sinophobia. For its part, the Biden administration seemed to believe in the possibility of a sale. This didn’t happen, and so here we are.
Nobody was playing 4-D chess, here, in other words. But there’s still a chance that someone ends up looking like they had a plan all along. Trump clearly wants to resolve this in a way that creates an impression that he “saved” TikTok, but his specific strategy is both unclear and, whatever it ends up being, inherently untested. The emerging possibilities are diverse. Trump could delay the ban, as is provisioned in the law if the company is making clear progress toward a sale; he could signal that he simply won’t enforce the law; he could sign executive orders to attempt to make the whole thing go away; he could extract concessions from TikTok, à la Biden before the law passed, or tries to quarterback a sale to American owners himself (to Frank McCourt and Shark Tank Kevin? Steve Mnuchin? Elon Musk? Mr. Beast?).
@tiktok Our response to the Supreme Court decision.
♬ original sound - TikTok
Most if not all of these options are dicey in legal, practical, and balance-of-power terms. The law doesn’t just declare TikTok a “foreign adversary controlled application,” it specifically prohibits providing “services to distribute, maintain, or update such foreign adversary controlled application … by means of a marketplace (including an online mobile application store,)” as well as providing “internet hosting services” for the company. In other words, this was designed to stop Apple and Google from carrying the app and TikTok’s cloud providers to stop working with it. Such companies have a lot to lose and no particular reason to go out on a limb for TikTok, and a vague promise from Trump not to enforce the law, or a flimsy executive order, might not do the trick. (TikTok has already prepared to take the app totally offline on Sunday; meanwhile, with no apparent backup plan after the Supreme Court, it’s appealing directly to a receptive Trump, who invited CEO Shou Chew to sit behind him at the inauguration.) Trump forcing the sale of TikTok to an ally, meanwhile, is both nakedly corrupt and not as simple as it sounds: ByteDance really is beholden to the Chinese government, which has export controls on some of TikTok’s underlying technology and little incentive to enable a full divestment. Some bids, including McCourt’s, account for this, suggesting a top-to-bottom rebuild of the app, which wouldn’t be a sale so much as a shutdown followed by a transfer of brand and users.
Trump’s recent statements on TikTok — he “discussed” it with President Xi Jinping in a “very good” call — suggest fairly clearly that he would like to do whatever is closest to just unilaterally declaring the law void, while maybe gaining some leverage over the company and the Chinese government at the same time. To the extent the details (the actual law, the self-preserving instincts of other tech giants, etc.) actually matter here, the next few months might be a mess. Which is perhaps Biden’s late, desperate, salvaging bet: that in punting the ban the Trump, the mess will belong to him.
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