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TikTok’s name has become the subject of conversation: there’s a sounding 90-day extension clock running that will determine whether the social media platform gets to stay in the U.S. or gets shunned. Allegations begin with the collection of user data from the Chinese Communist Party and continue with the Chinese government using the platform as a propaganda ploy against the U.S.[1] The potential ban has caused uproar across the states and the political strife between the U.S. and China has tainted TikTok’s fate in the U.S.[2] Not to mention, TikTok’s legal challenge concerns all three branches of government.[3]
A bipartisan Congress has been loud for years in their dislike of TikTok, alleging national security concerns.[4] The 118th Congress passed the Protecting Americans from Foreign Aversary Controlled Applications Act (“PAFACAA”), which “prohibits disturbing, maintaining, or providing internet hosting services from a foreign adversary controlled application (e.g. TikTok).”[5] The legislation went into effect on January 19, 2025.[6] In TikTok v. Garland, the Supreme Court also sided with the federal government when U.S. Attorney Merrick Garland raised the same concerns as Congress in his court defense.[7] Newly inaugurated President Donald Trump, however, proposed a management alternative that will please the millions of American TikTok users with a stay in the U.S.[8] In addition, PAFACAA allows an exception to prohibition if there is an execution of a qualified divestiture by the President.[9]
In 2016, Chinese-owned company, ByteDance, founded TikTok as a private global company and subsidiary of its own, and continues to own 60% of TikTok with its global institutional investors.[10] The other 40% is an even split between its founders and employees.[11] Yet, parent company ByteDance is alleged to have ties to the Chinese government, and this supposed connection is the source of the problem. It’s important to note that private companies like ByteDance must comply with the data security and cybersecurity laws of the People’s Republic of China (PRC). Specifically, the Chinese Communist Party may compel companies to turn over consumer data.[12] Nonetheless, the potential security concerns are ignored by American TikTok users. With a mission to “inspire creativity and bring joy,” this social media platform allows users to create and watch short videos that includes a feature to personalize user feeds as well.[13] According to Pew Research, TikTok is one of the most used social media platforms in the U.S. with an obvious expectation for numbers to be staggeringly high in other countries as well.[14]
For years, Congress has raised red flags against TikTok for alleged data collection and propagandist media and manipulated feed curation relating to the Chinese government.[15] In bipartisan fashion, Congressional members have suggested that TikTok “amasses copious amounts of data from its American users from ‘user content and communications’ to ‘location-related data, device identifiers, cookies, metadata, and other sensitive personal information.’”[16] Scary and controversial, TikTok has pushed back, claiming ByteDance does not share this user information with the Chinese government.[17] In 2022, TikTok launched Project Texas with a budget of $1.5 billion for a data security plan that would secure its platform and ensure there is no influence from any third party.[18] Yet still, lawmakers feel shaky, especially considering the Chinese government’s data security and cybersecurity laws would likely be difficult to circumvent. Ultimately, lawmakers have criticized TikTok for “not going far enough to fully insulate users’ data from China.”[19] The Justice Department also believes Project Texas to be lacking since some data could still get to China.[20] The most recent case of TikTok v. Garland is equally telling to the Supreme Court’s standing on the issue.
Following the enactment of the PAFACAA, TikTok filed suit against the now former U.S. Attorney General, Merrick Garland, for a violation of itsFirst Amendment rights per the Act’s prohibition.[21] Rushing to find a resolution before Trump was to take office on January 20th, the Supreme Court unanimously denied TikTok’s claim of its First Amendment violation.[22] Interestingly, TikTok’s counsel did not challenge the claims of national security risks that the Supreme Court asserted.[23] As Solicitor General Elizabeth Prelogar stated, incredible amounts of “valuable” user information was given to the Chinese government and used as a “powerful tool for harassment, recruitment and espionage.”[24] The Justice Department further stipulated two main national security justifications: (1) “China’s collection of data from TikTok’s 170 million U.S. users” and (2) “its purported ability to manipulate content on the app to further its geopolitical interests.”[25]
Yet, TikTok may survive. On his first day in office, President Trump signed an executive order to pause the TikTok ban, with a 90-day extension to allow TikTok to find a U.S. buyer.[26] Offering management alternatives, President Trump, a former businessman, suggests a 50-50 joint venture between ByteDance and a new U.S. owner.[27] To name a few, Shark Tank’s Kevin O’Leary (“Mr. Wonderful”) and billionaire Frank McCourt have placed offers to buy TikTok.[28] PerplexityAI, an AI search engine, has placed a bid as well.[29] But the bids may not be acted on; ByteDance is said to be resolute on its decision not to sell TikTok.[30] Other sources have suggested the management alternative of passing a new law to override the old one; yet this option will be harder to achieve with the ardent Congress.[31] It’s only a matter of time before the clock runs out and TikTok’s fate in the U.S. is decided. With Congress and the Supreme Court set on their opposition against TikTok, President Trump’s desire to keep TikTok in the U.S. is interesting and may be a win for the new White House Administration amongst the millions of American TikTok users.
[1] Deborah D’Souza, TikTok: What It Is, How It Works, and Why It’s Popular, Investopedia (Jan. 20, 2025), https://www.investopedia.com/what-is-tiktok-4588933#:~:text=TikTok%2C%20released%20in%20September%202016,on%20mobile%20devices%20or%20webcams.
[2] Kat Duffy, Why the TikTok Ban Harms U.S. Interests at Home and Abroad, Council on Foreign Relations (Jan. 17, 2025), https://www.cfr.org/expert-brief/why-tiktok-ban-harms-us-interests-home-and-abroad.
[3] Bobby Allyn, Trump signs executive order to pause TikTok ban, provide immunity to tech firms, NPR (Jan. 20, 2025), https://www.npr.org/2025/01/20/nx-s1-5268701/trump-executive-order-tiktok-ban.; H.R. 422, 118th Cong. (2024).; TikTok v. Garland, Nos. 24-656 & 24-657, slip op. (U.S. Jan. 17, 2025).
[4] D’ Souza, supra note 1.
[5] H.R. 422, supra note 2.
[6]Id.
[7]TikTok v. Garland, Nos. 24-656 & 24-657, slip op. (U.S. Jan. 17, 2025).
[8] Clare Duffy & David Goldman, TikTok is back online after Trump pledged to restore it, CNN Business (Jan. 20, 2025), https://www.cnn.com/2025/01/19/tech/tiktok-ban/index.html.
[9] H.R. 422, supra note 2.
[10] Clare Mulroy, Who owns TikTok? Parent Company ByteDance in spotlight amid possible US ban., USA Today (Sept. 16, 2024), https://www.usatoday.com/story/tech/2024/06/18/who-owns-tiktok-bytedance/73691106007/.
[11] Id.
[12] Andrew Allen, CHINA, BYTEDANCE, AND DATA PRIVACY: HOW THE FEDERAL TRADE COMMISSION COULD REGULATE TIKTOK’S COLLECTION AND USAGE OF AMERICAN USERS’ DATA AT HOME AND ABROAD, GW Law International Law and Policy Brief (Oct. 30, 2023), https://studentbriefs.law.gwu.edu/ilpb/2023/10/30/china-bytedance-and-data-privacy-how-the-federal-trade-commission-could-regulate-tiktoks-collection-and-usage-of-american-users-data-at-home-and-abroad/#:~:text=Like%20most%20private%20companies%20in,shares%20with%20its%20governmental%20partner..
[13]TikTok, About, https://www.tiktok.com/about?lang=en (last visited Feb. 8, 2025).; D’Souza, supra note 1.
[14] Social Media Fact Sheet, Pew Research (last visited Feb. 8, 2024), https://www.pewresearch.org/internet/fact-sheet/social-media/.
[15]Caitlin Yilek, Why is TikTok banned? What’s behind the law that shuttered the app, CBS News (Jan. 19, 2025), https://www.cbsnews.com/news/why-is-tiktok-being-banned-supreme-court-congress/.
[16] Allen, supra note 11.
[17] Id.
[18] Id.
[19] Id.
[20] Yilek, supra note 14.
[21] TikTok v. Garland, supra note 2.
[22] Amy Howe, TikTok, Inc. v. Garland, SCOTUSblog (Jan. 17, 2025), https://www.scotusblog.com/case-files/cases/tiktok-inc-v-garland/.
[23] Yilek, supra note 14.
[24] Id.
[25] Id.
[26]Allyn, supra note 2.
[27] Duffy & Goldman, supra note 7.
[28] Id.
[29] Id.
[30] Id.
[31] Id.