The TikTok Ban: American Leaders Are Reneging Their Responsibilities Under the Law

On April 24, 2024, President Biden signed the Protecting Americans from Foreign Adversary Controlled Applications Act (“Act”).[1] The Act, known colloquially as the “TikTok Ban,” prohibits U.S. companies from distributing, maintaining, or updating “foreign adversary controlled application[s]” within the United States. [2] It effectively prohibits the Apple App Store, Google Play Store, and other similar “online mobile application store[s]” from offering foreign adversary controlled applications for download to mobile devices.[3] The Act also prohibits “[p]roviding internet hosting services” to foreign adversary controlled applications in the United States, effectively banning those applications.[4] TikTok is classified as a foreign adversary controlled application. In fact, the Act specifically bans TikTok by name.[5]

Congress passed the Act out of concern that TikTok was stealing sensitive, American user data, relaying that data to the Chinese government, and using it to improperly influence Americans’ social and political decisions.[6] TikTok is known to maintain its proprietary algorithm in mainland China. The algorithm, and therefore American user data, is subject to the Chinese Communist Party’s laws and influence.[7] As such, Congress directed ByteDance, TikTok’s parent company, to perform a “qualified divestiture” of TikTok within 270 days of the enactment of the law.[8] This means that if TikTok were sold to a company located outside the control of foreign adversaries like China, then it could continue to operate in the United States.

Congress provided that the TikTok Ban should take effect 270 days after the enactment of the law.[9] This means that under current law, TikTok should have been banned in the United States starting January 19, 2025.[10] Despite this, the Act provides for an extension of the 270-day period, which reads:

[T]he President may grant a 1-time extension of not more than 90 days with respect to the date on which this subsection would otherwise apply . . . if the President certifies to Congress that – (A) a path to executing a qualified divestiture has been identified with respect to [TikTok]; (B) evidence of significant progress toward executing such qualified divestiture has been produced with respect to [TikTok]; and (C) there are in place the relevant binding legal agreements to enable execution of such qualified divestiture during the period of such extension.[11]

Thus, the President is empowered to grant a one-time, 90-day extension of the ban only if he demonstrates to Congress that a “qualified divestiture” is underway.[12] On January 17, 2025, two days before the ban was to take effect, the Biden White House released a statement, claiming “that actions to implement the law simply must fall to the next Administration, which takes office on Monday [January 20, 2025].”[13] In other words, President Biden reneged on his responsibility to either enforce the TikTok Ban or certify to Congress that such a qualified divestiture is underway. President Biden broke a law that he signed. The law is clear that the ban “shall apply” 270 days after enactment, unless a one-time extension is granted by the President in a lawful certification made to Congress.[14] This has not yet happened.

On the evening of Saturday, January 18, 2025, TikTok went dark for the 170 million Americans registered to use the app.[15] The following morning on Sunday, January 19, President-elect Trump promised to “issue an executive order on Monday to extend the period of time before the law’s prohibitions take effect . . . .”[16] The law’s prohibitions are, of course, already supposed to be in effect by the time President-elect Trump takes office. Mere hours after President-elect Trump’s post, TikTok came back online.[17]

In his post, President-elect Trump outlined his vision for saving TikTok.[18] Trump proposed “a joint venture between the current owners and/or new owners whereby the U.S. gets a 50% ownership . . . .”[19] This blog understands this to mean there is not a qualified divestiture actively underway as required by the Act. Assuming this to be true, President-elect Trump would too be acting in violation of federal law by refusing to enforce the ban and not properly certifying a 90-day extension to Congress.

While the move to ban TikTok has been met with mixed responses from the public, it was made with broad bipartisan support in Congress.[20] TikTok, President Biden, and President-elect Trump have had approximately 270-days to build a coalition to save TikTok. The fact that TikTok chose to litigate the constitutionality of the Act,[21] rather than pursue qualified divestments,[22] is no excuse. In a nation of laws, now is not the time for selective enforcement based solely on what is perceived as popular. For the sake of preserving the sanctity of the American system of laws, this blog urges incoming President Trump to either enforce the TikTok Ban or immediately certify to Congress that qualified divestiture is underway.

[1] 15 U.S.C. § 9901 note (2024) (Protecting Americans From Adversary Controlled Applications).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Sapna Maheshwari & Amanda Holpuch, Why TikTok Is Facing a U.S. Ban, and What Could Happen Next, N.Y. Times (Jan. 17, 2025, 11:17 AM), www.nytimes.com/article/tiktok-ban.html.

[7] Id.

[8] 15 U.S.C § 9901 note (Protecting Americans From Adversary Controlled Applications).

[9] Id.

[10] Joey Garrison, President Biden won’t enforce looming TikTok ban, putting fate in the hands of Trump, USA Today, www.usatoday.com/story/news/politics/2025/01/17/tiktok-ban-biden-wont-enforce-decision-trump/77773281007/ (Jan. 17, 2025, 10:56 AM).

[11] 15 U.S.C. § 9901 note (Protecting Americans From Adversary Controlled Applications).

[12] Id.

[13] Press Release, Karine Jean-Pierre, Press Secretary, White House, Statement from White House Press Secretary Karine Jean-Pierre Regarding TikTok (Jan. 17, 2025), www.whitehouse.gov/briefing-room/statements-releases/2025/01/17/statement-by-white-house-press-secretary-karine-jean-pierre-regarding-tiktok/.

[14] 15 U.S.C. § 9901 note (Protecting Americans From Adversary Controlled Applications).

[15] Thomas Barrabi, TikTok goes dark for 170M US users as app counts on Trump to work on solution, N.Y. Post (Jan. 18, 2025, 9:23 PM), nypost.com/2025/01/18/business/tiktok-to-go-dark-for-170m-us-users-after-app-announces-services-will-be-temporarily-unavailable/.

[16] Donald J. Trump (@realDonaldTrump), Truth Social (Jan. 19, 2025, 9:00 AM), truthsocial.com/@realDonaldTrump/posts/113855616848696050.

[17] Haleluya Hadero, TikTok says it’s restoring service to US users based on Trump’s promised executive order, Associated Press, apnews.com/article/tiktok-ban-trump-biden-china-bdc79b7ce741a81761f67ea56d410103 (Jan. 19, 2025, 1:49 PM).

[18] Trump (@realDonaldTrump), supra note 16.

[19] Id.

[20] Lawrence Hurley & Kat Tenbarge, Supreme Court leans toward upholding law that could ban TikTok, NBC News, www.nbcnews.com/politics/supreme-court/supreme-court-tiktok-ban-bytedance-china-biden-administration-rcna186971 (Jan. 10, 2025, 1:38 PM).

[21] TikTok Inc. v. Garland, Nos. 24-656 & 24-657 (Jan. 17, 2025), www.supremecourt.gov/opinions/24pdf/24-656_ca7d.pdf.

[22] See Aimee Picchi, After Biden signs TikTok ban into law, ByteDance says it won’t sell the social media service, CBS News (Apr. 26, 2024, 2:04 PM), www.cbsnews.com/news/tiktok-bytedance-says-it-wont-sell/ (noting how ByteDance stated that it “does not have any plans to sell TikTok”).