It has been 373 days since Congress enacted the TikTok divest-or-ban law, 105 days since the Supreme Court unanimously upheld the law as constitutional, and over three months since the ban was scheduled to take effect. Yet except for a brief Inauguration Day interruption, the Chinese-controlled app has been, and remains, readily available in the United States, collecting data on 170 million Americans—data that could potentially be exploited by foreign adversaries.
Given the national security concerns that gave rise to the act, and undergirded the court’s decision, this seems…problematic.
Long-time readers know that I opposed the TikTok ban. This was not because I admire the platform or dismiss critics’ concerns. I recognize that China is a geopolitical adversary that would love to exploit its conduit to half of all Americans to gain an upper hand in that battle. The data TikTok collects may have intelligence value—as demonstrated by the company’s own use of location data collected from journalists to determine the source of leaked confidential information (an effort TikTok later disavowed).
My primary concern was the ban’s threat to First Amendment principles. Many in Congress were explicitly motivated by the unconstitutional desire to suppress TikTok content—not just possible Chinese propaganda, which Americans have a First Amendment right to receive, but also a host of other objectionable-but-legal content. I also thought the government had not met the threshold of proving there were no steps short of a ban that could address their legitimate data privacy concerns without adversely impacting the speech rights of millions of American users who use the platform for expression and commerce.
Lawyers often say that “hard cases make bad law,” and the TikTok case was no exception. Using an expedited schedule to get a decision before the act’s January 19 deadline, the Court upheld the law largely by sidestepping these issues. The justices ignored Congress’s content-based rationales, asserting it was likely that Congress would have passed the ban based on the data security rationale alone. I doubt this is true: In a recent interview, former Representative Mike Gallagher (R-WI) noted that the Tiktok ban bill “was dead” until the October 7 Hamas attack, which prompted a flood of antisemitic content on the app and generated sufficient support for the bill to pass the House. The Court also largely trusted the government’s assertions that other remedies were insufficient, rather than requiring proof. Justice Gorsuch concurred in the judgment, upholding the law but with “serious reservations” and lamenting that the rushed briefing schedule (again, to adhere to the January 19 deadline) precluded a more nuanced treatment of “a major First Amendment dispute.”
But that looming deadline passed with barely a whimper. TikTok suspended US operations for 14 hours, a largely performative gesture since the ban provision does not directly regulate the app itself, but only prohibits app stores from carrying TikTok. Incoming President Trump announced via Executive Order (natch) that the government would not enforce the ban for 75 days, and when that ran out on April 4, further extended it until June 19. Apple and Google initially took down the app, but restored it shortly after receiving the administration’s assurances.
This leaves us in the worst of all worlds. The legal world is saddled with a decision that could be weaponized to uphold future restrictions on content, as long as Congress also offers a content-neutral rationale. But the government has not addressed the present national security concerns that prompted that decision. American data continues to flow to TikTok, and China has more incentive to use it now that the administration has entered a trade war with Beijing.
President Trump deserves some credit: despite originating the idea of banning TikTok in 2020, he recognized before most politicians that such a move would be politically unpopular. And in a sense, he was dealt a bad hand by the Biden Administration, which had four years to negotiate these national security issues with a willing TikTok but seemingly lost interest, prompting Congress to pass the divest-or-ban bill.
But the White House’s unwillingness to enforce the ban weakens its bargaining position. Divestiture has always been the preferred outcome: Americans would continue to benefit from the platform without sending data to China or allowing the Chinese Communist Party to influence American public opinion. Divestiture remains Trump’s goal, but ByteDance has not wavered from its position that it would shutter the app rather than sell it. In a sense, ByteDance has called Congress’s bluff. Without a credible ban threat, Trump’s position weakens each day, as TikTok becomes an increasingly valuable chip for China in ongoing trade negotiations. If the White House is serious about TikTok’s threat to national security, it must not allow Beijing to drag out this issue any longer.
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