The Supreme Court rejected TikTok’s appeal on January 15.With the statutory deadline of for TikTok’s sale or ban just four days away, it seemed nearly certain that the short-form video app would be forced to quickly change its ownership or cease its availability in the U.S. But in eight months since, two U.S. presidents have failed to enforce the law, TikTok continues operating in the U.S., and Congress has yet to confront the White House over its refusal to carry out the law it passed with wide margins.
With the ban coming into effect on January 19, the last day of his tenure, Biden punted enforcement to the incoming Trump administration. Trump then issued a series of executive orders delaying the enforcement of the ban, declaring that the executive branch would not act to ban TikTok until it could “negotiate a resolution to avoid an abrupt shutdown of the TikTok platform while addressing national security concerns.” The first order was issued on Inauguration Day, which TikTok CEO Shou Chew attended, seated next to intelligence chief Tulsi Gabbard. The company also sponsored an inauguration-eve party for pro-Trump influencers.
PAFACA allows for a 90-day extension of the enforcement deadline, but that provision was designed to allow an ongoing sales transaction to be completed, not to repeatedly delay action through executive order. So far, the White House has delayed enforcement for 226 days—and though that latest extension was supposed to expire Tuesday, Trump signed yet another executive order authorizing an enforcement delay—this time to December 16.
It’s an understatement to say this stretches the word of the law, but it looks like the administration’s legal gambit has paid off.
On Monday, Treasury Secretary Scott Bessent told reporters that China and the U.S. had agreed to a framework for a deal “between two private parties” to transition the social media company to U.S. ownership.
Chinese officials said the deal would include “licensing the algorithm and other intellectual property rights,” but the Wall Street Journal reported that TikTok engineers would use technology licensed from ByteDance to re-create a set of content-recommending algorithms for a U.S. app, rather than import the algorithm wholesale.
CNBC reported on Tuesday that the deal is expected to close within the next 45 days, and will involve both existing ByteDance investors and new ones. White House officials also said the agreement would reduce ByteDance’s ownership stake to less than 20 percent to comply with the law, and the Wall Street Journal reported that U.S. technology giant Oracle and its owner, Larry Ellison, would be joined by venture capital firms Andreessen Horowitz and Silver Lake in the 80 percent stake. Existing ByteDance investor Jeff Yass—a major Republican donor—is also reportedly involved. Oracle already works extensively with TikTok, storing all U.S. user data on its own servers as part of Project Texas, an initiative aimed at alleviating concerns that TikTok could grant China access to Americans’ personal data (although questions remain about the project’s effectiveness).
The source of the app’s wild success, TikTok’s video recommendation algorithm, is the industry benchmark—U.S. TikTok users average nearly twice as much time per day on the app compared to users of Snapchat, Facebook, and Instagram. But this algorithm is one of the main reasons Congress was alarmed by TikTok’s success in the first place: Parent company ByteDance uses it across multiple products, including the Chinese equivalent of TikTok, Douyin. ByteDance claims to have no relationship with the Chinese government, but it’s bound by Chinese law to collaborate with the country’s intelligence agencies and works with Beijing on military technology projects. The Chinese Communist Party also owns a “golden share” in ByteDance, entitling it to a seat on the board of the company’s Chinese subsidiary.
If TikTok retained access to the existing algorithm under the new deal, Chinese officials could influence which user-generated content is more likely to be seen—and which isn’t. And this concern about a foreign adversary wielding influence over Americans isn’t theoretical. In 2024, as a U.S. ban loomed, TikTok pushed messages to its roughly 150 million U.S. users urging them to contact their representatives to oppose the ban—a move that immediately backfired.
“This is exactly the reason why so many of our colleagues voted for the bill,” Rep. Raja Krishnamoorthi of Illinois, the ranking Democrat on the House Select Committee on competition with the Chinese Communist Party, said at the time. “They don’t want a foreign adversary controlling social media apps using geolocation to target minor children to call members of Congress or interfere in our elections.”
But less overt strategies might be easier to pull off. Videos supporting Taiwan, or highlighting human rights abuses in western China, could be suppressed by a simple algorithm tweak, said Ryan Fedasiuk, a fellow at the American Enterprise Institute, in an interview with TMD. “If a U.S.-based company is just operating the algorithm as it has been developed by ByteDance, then all of the long-standing concerns American lawmakers have had about TikTok basically won’t go addressed.” Last year, TikTok removed a video of a Uyghur student discussing Chinese abuses against her people, claiming it violated community guidelines.
Leaving the algorithm in the hands of a Chinese company is also likely illegal. The text of the 2024 legislation states that TikTok will be able to operate in the U.S. only if “the President determines” that a new ownership structure severs any operational relationship between U.S. owners of Tiktok and entities “controlled by a foreign adversary, including any cooperation with respect to the operation of a content recommendation algorithm or an agreement with respect to data sharing.”
Adopting the deal laid out this week would be a plain “contravention of the text of the law,” Alan Rozenshtein, a professor at the University of Minnesota Law School, told TMD. It’s possible that federal lawyers will rely on the “president determines clause” to argue that Congress has delegated the entire authority to determine what sort of deal satisfies the law to the president—a somewhat far-fetched assertion, Rozenshtein said. But Trump would be on firmer ground if the rebuilt algorithm is a truly distinct entity from ByteDance’s proprietary software, he noted.
In letters sent earlier this year, Attorney General Pam Bondi promised to protect operators of app stores and cloud hosting services from legal penalties for providing U.S. services to TikTok. (Apple, Google, and Oracle did not respond to TMD’s requests for comment.) Bondi wrote that the U.S. government was “irrevocably relinquishing” any claims of liability on the companies’ part for hosting TikTok in violation of the law. Bondi also argued that the law was never intended to infringe upon the president’s foreign affairs powers—which Rozenshtein said is just a “way of saying the law is unconstitutional because the President doesn’t like it.”
Congress has done nothing to push back on Trump’s decision, which could include holding hearings or withholding funding for executive branch priorities. Most congressional Republicans have yet to weigh in on the new deal, but many oppose China controlling the algorithm. In a statement to TMD, a spokesperson for the House Select Committee on the Chinese Communist Party, chaired by Republican Rep. John Moolenaar of Michigan, said it was closely following the matter, and that “Any agreement must comply with the historic bipartisan law passed last year to protect the American people, including the complete divestment of ByteDance control and a fully decoupled algorithm.”
And if the White House is to be believed, it agrees.
Commerce Secretary Howard Lutnick told CNBC last week that “the president likes TikTok” but that an algorithm controlled by Chinese actors is a problem.
“The president knows, if we’re going to have TikTok here, that’s got to go,” he said.
