The U.S. Circuit Court of Appeals in Washington, D.C., today upheld the constitutionality of a law requiring Apple and Google to remove TikTok from their app stores by January 19 , or face fines of hundreds of billions of dollars for failing to do so. Unless ByteDance sells TikTok before January , or President Biden grants an extension, TikTok “will not be available in the United States” until a sale occurs, the court said .
At Apple, executives including CEO Tim Cook and other top officials have been debating how best to respond to the ruling, admitting they can do little other than abide by it. And President-elect Trump is unlikely to be able to do anything to stop the law from taking effect on Jan. 19. Chief among executives’ concerns is how to ensure that foreigners visiting the U.S. cannot use the app within the country’s borders. TikTok has been downloaded from the App Store hundreds of millions of times around the world.
Similar discussions have been taking place at Google, whose app store has seen more than 1 billion TikTok downloads worldwide. “Let’s just say it’s something we’ve been concerned about for a while,” said one source familiar with the conversations, noting that the company has similar concerns to Apple. Google employees have also expressed concern about how best to address “sideloading,” or users downloading apps from sources other than the company’s app store.
There has been speculation at both companies that if TikTok appeals the ruling and the case ends up in the Supreme Court, Trump may file an amicus brief asking for time to find a solution before the ban goes into effect.
Apple declined to comment. Google has not yet responded to a request for comment .
In a statement, TikTok spokesperson Mike Hughes said: “The Supreme Court has an established historical record of protecting Americans’ right to free speech , and we expect them to do just that on this important constitutional issue. Regrettably, the TikTok ban was conceived and pushed forward on the basis of inaccurate, flawed, and hypothetical information, resulting in the outright censorship of the American people. The TikTok ban, unless stopped, will silence the voices of over 170 million Americans here in the U.S. and around the world on January 19, 2025.”
The law upheld by the decision, the Protecting Americans from Apps Controlled by Foreign Adversaries Act (PAFACAA), was passed by the legislature and signed into law by President Biden in April in response to widespread concern among intelligence officials that the platform could be used by the Chinese government to collect private information on Americans or surreptitiously distort their information diets. In its defense of the law, the Justice Department cited extensively from Forbes reports showing that TikTok’s parent company, ByteDance, repeatedly made private information about American users available to China, misled lawmakers about its data practices, and surveilled journalists who reported on the company. The court cited this information in its opinion as well.
Some former TikTok employees welcomed the decision, with one telling Forbes: “I am encouraged to see the court favor bipartisan legislation that reflects the will of the people.” Current and former employees, including myself, know what TikTok has done to harm people and American national security, as well as what it is capable of if not divestd or banned due to its close ties to the Chinese Communist Party. I hope President-elect Donald Trump follows through on his campaign promises to put America first by upholding the rule of law.”
The fact that the law focuses on Apple and Google is an unusual feature of PAFACAA . Congress could have chosen to target TikTok directly in the law, to say that ByteDance, or its US subsidiary TikTok, Inc, would be fined billions if it did not complete the divestment or cease its US operations by the bill’s deadline. Instead, lawmakers decided to let the US tech giants carry out the ban, theoretically less likely than ByteDance or TikTok to run afoul of US law.
The decision will now embroil two of America’s most powerful tech giants in the fight against TikTok, forcing them to enact an unprecedented ban. If TikTok challenges the law to the Supreme Court, as many observers expect, the company could ask the court to stop the ban from going into effect while it studies the case. Apple and Google could in turn ask the court for a stay while the decision is pending. But only a court ruling is likely to make the American companies feel comfortable keeping TikTok online after January 19; otherwise, they could face fines that could quickly amount to hundreds of billions.
President-elect Donald Trump, who will be inaugurated a day after the January 19 deadline, has said he wants to “save TikTok” from PAFACAA. Presidents cannot repeal laws without an act of Congress, though people close to the president-elect have suggested he could order his Justice Department not to enforce the law.
TikTok can choose where to direct its next appeal: It can ask the full, or “en banc,” D.C. Circuit to reconsider the decision made by its three-judge panel, or it can go directly to the U.S. Supreme Court and ask it to hear the case. Statistically, both appeals are unlikely to succeed: The D.C. Circuit grants very few requests for “en banc” review, and the U.S. Supreme Court hears only about 1% of the cases that come before it.
Still, the high court may want to hear the TikTok case because of its constitutional significance and potential impact on millions of people: More than half of Americans currently use the app. At least one Supreme Court justice has already started thinking about TikTok: In a concurring opinion last June, Justice Amy Coney Barrett suggested that platforms might have fewer First Amendment protections if they are run by foreign officials — a suggestion cited by the Washington Circuit opinion.
If it goes into effect on January 19, PAFACAA will be the first time the US government has banned a social media app — and it may not be the last. Civil liberties advocates have raised alarm that PAFACAA could become a model for banning other platforms, both in the US and abroad, and scholars of the social media business predict it could upend the international app economy. Commenting on the Washington Circuit’s decision, the ACLU wrote: “This ruling sets a flawed and dangerous precedent, giving the government too much power to silence Americans’ speech on the internet.”
With its legal options narrowing, TikTok’s strategy may now be more focused on politics — but the company’s dream of a Trump pardon may be far-fetched. Some of TikTok’s staunchest critics are members of Trump’s incoming cabinet: Marco Rubio, Trump’s nominee for secretary of state, was one of the first lawmakers to call for an investigation into the app in 2018. Trump’s new national security adviser, Mike Waltz, Homeland Security Secretary Kristi Noem, CIA Director John Ratcliffe and FCC Chairman Brendan Carr have all been outspoken supporters of a ban.
In an ironic twist, Trump’s hands may ultimately be tied by congressional Republicans, who successfully pushed to strip the bill of presidential discretion out of fear that President Biden or a potential President Kamala Harris would “go soft” if given too much leeway. Now, that could prevent Trump from “saving” the beloved app.
In a joint statement, House China Committee Chairman John Moolenaar and Raja Krishnamoorthi welcomed the ruling. “With today’s ruling, all three branches of government have reached the same conclusion: ByteDance is controlled by the Chinese Communist Party, and ByteDance’s ownership of TikTok is a national security threat that cannot be mitigated by any means other than divestment,” Krishnamoorthi said.
Moolenaar echoed that he was optimistic about the divestment: “I am optimistic that President Trump will facilitate a US acquisition of TikTok to enable its continued use in the US and look forward to welcoming the app into the US under new ownership.”
