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Kat Duffy is a senior fellow for digital and cyberspace policy at the Council on Foreign Relations.
Is TikTok going dark this weekend?
Absent congressional action before Sunday (when the bill takes effect), there may well be some interruption to TikTok, a service used by more than 170 million Americans. President Joe Biden has stated that he won’t intervene to delay or enforce the law. The law allows the president to delay its implementation for up to ninety days, but that’s contingent upon a viable bid for TikTok being in place, and there will be at least one day between the law being enacted and President-elect Donald Trump coming into office on Monday.
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Trump has stated that he discussed the platform, among other priorities, with Chinese President Xi Jinping. There has also been talk of Trump “saving” TikTok through an executive order. To be clear, such orders only apply to executive branch functions. Trump can influence the political environment, galvanize constituents, put pressure on legislators, and order the Department of Justice not to enforce—but an executive order cannot override a law. Telling the Justice Department not to enforce a clear law with such bipartisan backing would also set up a new game of chicken between the executive and legislative branches. Given how this Supreme Court has curtailed executive power through its rulings on administrative law, that move carries its own risks.
Those are some of the many legal considerations. However, the practical ones are arguably most likely to drive what happens in the immediate term. The fines for companies that violate this bill are huge: entities such as app stores and cloud providers hosting TikTok’s data could be fined $5,000 per U.S. user. Such fines wouldn’t affect TikTok nearly as much as Apple or Google, which both have app stores, and Oracle, which could face $850 billion in fines as the cloud provider hosting TikTok’s U.S. data. (Adam Conner of the Center for American Progress breaks it down here). That’s a lot of risk for these companies to absorb in such a volatile political environment, with an incoming president who has flip-flopped repeatedly on TikTok for almost five years. In addition, if TikTok’s parent company, ByteDance, carries through on its threat to shut down the app in the United States on Sunday, the company could leverage TikTok’s vast popularity to deepen political pressure on the president and U.S. lawmakers to create a surer operating space for the app.
China and other countries, of course, have banned outside media. Is there any precedent for such a U.S. ban?
So, this is tricky because we’re not technically dealing with a “ban.” The law at issue targets a “foreign adversary-controlled application” and forces ByteDance to divest TikTok to a qualified buyer or essentially cease operating in the United States. This distinction is key to the Supreme Court’s decision to uphold the law [PDF], because the Court found that the law targets corporate control rather than protected speech. Meanwhile, ByteDance has consistently stated that it will not sell TikTok. A “ban” is the practical effect of an industrial law based on a claimed national security threat, and there is certainly precedent for Congress having taken action on that front. Notably, the Court refused to consider classified evidence that had not been disclosed to all parties, and even without the classified evidence, deemed the law constitutional. However, the justices leaned heavily into congressional authority to protect national security interests in order to avoid grappling with the speech implications.
Is the law justified on national security grounds?
This is also tricky. China is unquestionably a foreign adversary, and the threats posed by TikTok’s popularity and China’s theoretical ability to demand huge amounts of data about American citizens are real. My concern with this bill is that the U.S. government has not given the American public any compelling evidence that the alleged national security threat is anything more than theoretical. Meanwhile, the country also has a lack of data privacy laws that protect U.S. consumers from having their personal information simply purchased by China and other adversaries. China doesn’t need TikTok to gather data on Americans when it can simply write a check.
If Congress is going to force the sale of a platform used by more than 170 million Americans to share and receive information—which generates billions of dollars in revenue for U.S. small businesses and creators—Americans deserve more than, “Trust us!” and generalized national security warnings. Americans’ trust in the federal government remains abysmally low; no branch of government has the credibility to defend this decision without providing more compelling evidence of a true threat. If the national security danger was pressing enough to motivate Congress to pass a bill with such incredible free speech implications, it is presumably still pressing enough to demand the bill’s implementation. I applaud the senators who have called for declassifying evidence regarding this threat. I question those legislators who voted in favor of the bill, and now at the last minute are seeking to delay its implementation. Those actions undermine the legitimacy of the national security pretext and increase the perception that political headwinds and posturing are driving decision-making.
Are there issues more people should be talking about with this story?
Let me focus on two:
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- The first is the message this sends to the world. The general perception is that the U.S. government is afraid of the Chinese government successfully influencing Americans and is consequently banning a platform for expression. The United States is the strongest and most credible defender of free speech on the planet, and if it loses that moral authority on the world stage (as well as at home), it gives China and other authoritarian regimes a breathtaking win in the bigger influence war.
- The second is the potential slippery slope this law creates. Tencent, for example, is a Chinese company that was listed by the Department of Defense last week as having ties to the Chinese military. Tencent is also the largest video game publisher in the world. Policymakers tend to overlook the importance of the gaming industry both in the United States and around the world, but the language of the bill would seemingly apply to Tencent. If you want to get American youth in particular really furious with their government, and you want to make the rest of the world’s youth think we’re wildly irrational and paranoid, tell them you’re going after League of Legends (owned 100 percent by Tencent’s Riot Games) or—less likely—Fortnite (owned by Epic Games, where Tencent’s ownership stake has now diminished from 40 percent to 29 percent).
This underscores why the U.S. government should be declassifying as much information as possible about the national security threat posed by ByteDance’s ownership of TikTok. The world is watching, and if we produce evidence strong enough to justify our taking this action, it will empower other governments to push back on China and ByteDance as well. That builds trust in the U.S. commitment to its national security and democratic values. Continued silence does not.
This work represents the views and opinions solely of the author. The Council on Foreign Relations is an independent, nonpartisan membership organization, think tank, and publisher, and takes no institutional positions on matters of policy.
This publication is part of the Diamonstein-Spielvogel Project on the Future of Democracy.
Correction: This Expert Brief previously stated that Tencent had a 40 percent stake in Epic Games. This error was corrected on January 21, 2025.