No matter what TikTok says in its pop-up messages, President-elect Donald Trump cannot simply announce an extension of the deadline to ban TikTok and protect the American companies that support it from billions of dollars in fines.
Trump apparently wants TikTok to be available for his inauguration on Monday, because “Americans deserve” to watch the event. But TikTok is officially banned starting today until it is sold to a non-Chinese company, and there is no deal in sight. Violating this ban could result in Apple and Google app stores, as well as service providers Akamai and Oracle, facing a potential $850 billion in fines. Despite all this, Trump reportedly assured the companies that they would not face these fines if they allowed TikTok to continue operating. Now the question is simple: Will Trump-friendly companies risk breaking the law to please the president?
TikTok’s situation has been uncertain since last night. President Joe Biden said he would not enforce the law on the final day of his presidency, but TikTok announced it would go dark anyway. App stores have removed them in accordance with the law. Trump then promised to extend the deadline, telling the companies they would not face penalties, and TikTok quickly came back online with a message of thanks to the president-elect. The problem is that it is not clear that Trump can deliver what he promised.
Congress passed a law directly requiring TikTok to divest itself from parent company ByteDance or face a ban. It included an option for President Joe Biden to extend the deadline by 90 days if the deal is announced; Biden refused to use it. There are only a few options for TikTok to continue operating legally now. The app can be sold and returned under different ownership. It is possible that Congress could pass a new law to extend the deadline or end the ban. Or Trump could try to extend it by certifying a deal to change TikTok’s ownership — but unfortunately for him, he can’t simply sign an order saying the law no longer exists.
This puts companies in a legal bind. TikTok providers in the US risk $5,000 in fines for every person who uses their service to access the app. The government told the Supreme Court it could be implemented up to five years later, so they could be punished under a future president (or Trump himself).
Trump needs to take action in a way that convinces them this won’t happen. Perhaps his best option would be to certify to Congress that TikTok has agreed to the sale, then try to trigger the 90-day extension that Biden did not use. (There is debate about whether this would be possible to do after the ban began, but legal experts say it is at least possible to argue in its favour.) “To be clear, he would be lying” about the deal, says Alan, a professor at the University of Minnesota Law School. Rosenstein. “He would lie to Congress, and that would be Congress’s problem. But he would still be certified, and so until the court declares that certification invalid, I think companies will be safe.”
“This may suggest that posting on Truth Social is enough for some companies to go ahead and voluntarily violate federal law.”
However, for now, Trump’s assertions that supporting TikTok is safe are legally tenuous. TikTok began coming back online in the US midday Sunday, suggesting its service provider Oracle may be relying on Trump’s assurances to Truth Social that it would delay the ban, though the company has not confirmed or commented. “This may suggest that posting on Truth Social is enough for some companies to go ahead and voluntarily violate federal law,” says Matt Chittenhelm, a litigation analyst with Bloomberg Intelligence. “This is an amazing development in my view, if that is what is happening.”
If companies We are If they break the law, they’ll likely have a strong due process defense, given Trump’s promises not to enforce it, Shittenhelm says. But “any time you voluntarily violate federal law, you’re forcing yourself into a fight over the issue,” he says. “Yes, it may be a winnable fight, but when the fight is over $850 billion, it’s better that we don’t have to get into that fight at all.”
Rosenstein says the move could lead to lawsuits by shareholders — something Senate Intelligence Committee Chairman Tom Cotton (R-AR) has warned about, even though Trump has encouraged providers to bring TikTok back online in time for his inauguration. .
“It’s probably a winnable fight, but when it comes to a fight worth more than $850 billion, it’s probably better not to get into that fight at all.”
He said that, Trump’s power It can encourage some companies to take calculated risks. “It’s certainly in these companies’ interests to curry favor with the new administration, and I think it’s conceivable that even $850 billion of liability exposure and even voluntary violation of a new federal law might be worth it for some companies,” Chittenhelm says. “But you don’t usually think those calculations make sense.”
If Trump tries to illegally overrule Congress, someone with the right to file a lawsuit could challenge him in court. Who might this be? One option is for TikTok users who supported the ban and fear the Chinese government will get their data. “Of course, courts might say, ‘Well, don’t use TikTok,’” Rosenstein points out. A competitor like Meta may also be able to make a claim, he says. Or a service provider like Apple or Google may try to use the court to clarify its legal liability, without actually challenging the arrangement. But given tech companies’ attempts to avoid antagonizing Trump, this path seems unlikely.
If TikTok providers really want legal cover, instead of true qualification divestiture — which would take time to discuss, even if China agrees to sell the app — their best option is Congress. This still seems like an unattainable goal, especially in such a short time. But now that Senate Minority Leader Chuck Schumer (D-N.Y.) has agreed to an extension, Chittenhelm says, “it begins to be conceivable that Congress might agree to delay the ban or at least bring it back.” This would be the most legally correct way to do it.
