TikTok's future in the US

On Friday 6th December 2024, the US Court of Appeal upheld a law requiring TikTok to be sold by its Chinese parent company, ByteDance, or be banned in the US by 19th January 2025.

Court of Appeal decision

On Friday 6th December 2024, the US Court of Appeal upheld a federal divestiture law requiring TikTok to be sold by its Chinese parent company, ByteDance, or be banned in the US by 19th January 2025. The Court of Appeals for the District of Columbia Circuit heard TikTok’s argument that the law, passed by Congress in April, violated the first amendment. The court stated in their opinion that the government acted to protect the First Amendment rights ‘from a foreign adversary nation and to limit that adversary’s ability to gather data on people in the United States’. 1 The court also noted the law was a result of ‘extensive, bipartisan action’. 2

User petitioners

ByteDance and TikTok were not the only petitioners, they were accompanied by American citizens, namely Based Politics Inc. and the self-styled Creators (8 individuals who use the TikTok platform).

Arguments

First Amendment

TikTok primarily argues that the legislation violates the first amendment rights of its American users, ‘silencing over 170 million Americans’. 3
It argues that the national security concerns, which the government claims meet strict scrutiny, are speculative as it has already spent $2 billion to implement measures to protect American data and submitted a 90-page draft National Security Agreement. 4

Right to Equal Protection

TikTok argues the act violates its right to equal protection with TikTok specific provisions, placing more requirements on TikTok than other social media companies.

Bill of Attainder

A further argument is that the act amounts to a bill of attainder (act declaring a person guilty of a crime and providing a punishment, often without trial). This is prohibited by the Constitution.

Takings Clause

It argues that the act is in violation of the Fifth Amendment, specifically the Takings Clause (private property being taken for public use, without just compensation), because it will render TikTok defunct, with the time for sale not being feasible and it being unclear whether the US and Chinese governments would sanction the sale.

What happens now?

TikTok and their parent company, ByteDance, intend to appeal the ruling. On Monday 9th December, ByteDance and TikTok requested an emergency injunction to the ban until the appeal is heard by the US Supreme Court on the 10th January 2025. They argue that there is a significant prospect the Supreme Court will overturn the decision citing the upcoming change in administration at the White House. Despite trying to ban TikTok when first in office, President Trump has now vowed to ‘save TikTok’ from a ban. 5 TikTok argues that a ban would impact the First Amendment rights of 170 million users, cause small businesses to lose over $1 billion in revenue and creators to lose almost $300 million in lost earnings. 6 The US Department of Justice is opposing the injunction, stating that the underlying arguments have already been dismissed. 7

What is the current state of affairs?

On the 27th of December 2024, President Trump asked the US Supreme Court to delay a law that would ban TikTok or force its sale. 8 His lawyer D.John Sauer asked the Court to allow the incoming administration the time to pursue a political resolution.

The US Department of Justice have asked the Supreme Court to reject this request, stating that such a delay could only be granted if ByteDance could establish they were likely to succeed on the merits, but the company had not done so. 9 The Government further argued that TikTok poses a severe national security risk, both in the way it either restricts or amplifies certain political messages, and the vulnerability of user data. 10

It has been widely reorted that the President-Elect has said "Why would I want to get rid of TikTok?". “President Trump opposes banning TikTok in the United States at this juncture, and seeks the ability to resolve the issues at hand through political means once he takes office,” his lawyer Dean John Sauer is quoted as telling the US Supreme Court.

The law prohibits U.S. app stores from hosting TikTok unless Chinese parent company ByteDance divests from it is scheduled to take effect one day before Trump’s Jan. 20 inauguration. He could potentially pause the ban for 90 days but such a pause could be challenged in court.

What could the US law mean for the UK/EU?

There are over 150 million active users of TikTok in the UK and EU. 11 12 Other than potentially impacting UK and EU users’ enjoyment of their American counterparts’ content, there is no indication that the UK Government or the EU is imminently poised to ban the app or force its sale. In March 2023, the UK Government banned the app on all government devices as a precautionary measure, 13 mirroring a move made the previous month by the European Commission, 14 however did not discourage the public from using it in a personal capacity. 15
TikTok already comply with onerous regulatory obligations governed by the UK Online Harms Act and the EU Digital Services Act, alongside local laws of all jurisdictions in which its approximately 1 billion customers are located. 16

DWF specialise in technology, IP and media law and are committed to providing expert legal advice. If you are in need of assistance in the Northern Irish or Irish jurisdictions, please contact Olivia.OKane@dwf.law.