Is It Legal to Distribute, Maintain, and Update a Foreign Adversarial App to Encrypt and Dispose of Its Data?
It is against the law for any such entities to distribute, maintain, or update a foreign adversary controlled application either through a marketplace or internet hosting services.
In December, the CEOs of Apple and Google were warned that they needed to “fully comply with this requirement” by the deadline if they wanted to avoid an impact on users.
The effect on users will not be clear if TikTok is banned. If the app was to be removed from the app stores, Apple and google would have to stop updating it. It would still remain on users’ phones if they’ve already downloaded it but Oracle, which provides cloud infrastructure to TikTok in the US, would likely also be required to stop hosting the app’s data.
They are commonly used in countries with strict internet restrictions to access blocked social media platforms, streaming services and other geographically limited content.
A Virtual Private Network is a piece of software that encryptes users location data, so they look like they’re accessing content from another country.
On the Status of TikTok and the President-elect’s Warm Spot: Prospects for an Effective Bargaining Chip with the US
Some could still access TikTok by using virtual private networks (VPNs) but that adds an extra layer of friction. If the Supreme Court doesn’t stop the ban on Sunday, progress could continue after the ban takes effect. The chance of Congress extending the deadline is slim.
“If you already have [TikTok] on your phone, it’s not going to disappear from your phone on January 19th or January 20th,” Ruane says. It will probably disappear from application stores.
“Over time … the service that you get with the application will be worse and worse and worse,” she adds, though it’s too soon to tell whether that will be a matter of days, weeks or months.
The platform won’t be able to fix bugs, add features or address security concerns without the ability to update. It may become incompatible with the operating system on certain phones eventually, according to Ruane.
China will face a protectionist administration when Trump is sworn in next week. He has promised exorbitant tariffs on Chinese imports, which could damage its economy. If the Chinese government is looking for an effective bargaining chip with Trump and the US, it might have found one in TikTok, especially considering the President-elect’s “warm spot” for the app. Chinese officials see a deal over TikTok being a possible area of collaboration with the US as they anticipate tense negotiations over other issues with the Trump administration, sources told Bloomberg.
President Biden signed into law the Protection Americans From Foreign Adversary Applications Act in April of 2020, giving the government power to ban foreign-owned apps that it deems a threat to national security.
Trade-Off Laws Can Hit the U.S. Legally: How Does a TikTok Ban Come To The Forbidden Land?
China may hold off on a sale if it believes the US will let TikTok remain under ByteDance’s ownership, especially given TikTok’s influence around the world. ByteDance is a homegrown tech champion and source of national pride for China, so government may be unwilling to suffer the optics of handing TikTok over to the US. Even if a significant market for TikTok disappears, China may want the US to take heat over the ban. Chinese foreign ministry spokesperson Wang Wenbin said last year that a forced sale or ban “will inevitably come back to bite the United States.”
The Free Expression Project, which supports TikTok and its users’ rights, predicts that it will be harder for people in the U.S. to access the app.
It’s a barrier to access the application and also something that you have to weigh, like. Is it really worth it to me to access TikTok, to do all of this or learn how to do all of these required technical things?’” she says. “And I think for a fair number of users who are just casually using the application, the answer will probably be no.”
While Trump has tried to ban the app in the past, he’s currently a steadfast defender of it and asked the Supreme Court last month to stop the start date of the law in question.
“There’s a scenario in which ByteDance could move some papers around, shift some assets from one corporation to another corporation, do some fancy legal work, and that would give Trump enough, basically, cover to declare that TikTok is no longer controlled by ByteDance,” Rozenshtein said.
It’s straightforward, but it’s politically difficult to do because it requires changing votes for many members of Congress.
Trump’s second option is to direct the Justice Department and attorney general to not enforce the law, essentially giving Google, Apple and others the option to continue providing services to TikTok.
But Ruane says that’s also easier said than done, as lawyers within those companies would still see — and likely seek to avoid — “gigantic legal risk” in flouting the law, which includes hefty penalties.
TikTok Will Not Be Banned in the United States, But Instead Will It Haste by a Chinese Social Media Platform? An Analysis of Musk’s Possible Role in Helping Trump and Trump
Someone who uses your service to access TikTok will pay $5,000 per person that does that. Even though you are technically in violation of the law, if you were to take the president up on his offer and continue to provide services to TikTok, that’s $5,000 times hundreds of millions of people.
Alan Rozenshtein is an associate professor at the University of Minnesota Law School who works at Lawfare. Trump told NPR in December that he was able to declare the law no longer applied.
The deal was supported by the Biden administration at one point. People close to talks about TikTok’s future say it is possible Trump brings Project Texas back, with Trump potentially determining that the agreement makes TikTok in compliance with the divest-or-ban law.
As TikTok anxiously awaits a Supreme Court decision that could determine whether it will be banned in the United States, users are preemptively fleeing the app and migrating to another Chinese social media platform called Xiaohongshu, which literally means “little red book” in Mandarin. Xiaohongshu was the most downloaded app on Apple’s US App Store even though it doesn’t have an official English name. The second app on the list is Lemon8, another social media app owned by TikTok’s parent company ByteDance that is also experiencing a traffic surge from exiled TikTok users.
Some users are predictably going to Instagram or YouTube, but others say they would like to stick to a platform developed by a Chinese company to protest the decisions by US lawmakers that lead to this situation. Someone wrote on Bluesky that they had to tell people to get Rednote out of spite over the TikTok ban. Taylor Lorenz shared a link to her Xiaohongshu account on Bluesky, saying the platform was the hottest new social app in America.
Musk is uniquely positioned to play a role in a potential deal. He has a direct line to Trump, as well as plenty of experience dealing with Chinese authorities, and he bought the video game X to be more like TikTok. (Sales from China account for a significant share of Tesla’s business.) He could create a better platform by merging TikTok with X and xai. He has access to the money he needs to do a deal as the richest man in the world.
Long Le, an international business professor at Santa Clara University, tells The Verge that China may be open to a joint venture arrangement, similar to what foreign companies operating in China often undergo. If a person from a country that is not the United States owns at least 20% of the app, it will be considered to be controlled by a foreign adversary.
“If they were going to do some type of joint adventure, Elon Musk would be ideal because he’s also close to Trump,” Le says, adding that the Chinese government may already feel comfortable with him. “Having someone like Musk would still allow the US and China to have some aspects of linkage to trade and foreign direct investment, even though, in general, the decoupling is occurring.”