The United States Supreme Court seems poised to uphold a law that would see TikTok banned in the US if its Chinese owner, ByteDance, fails to divest it by January 19.
Both conservative and liberal justices were sceptical of ByteDance’s arguments at a hearing on Friday (more on which below) and their ruling could come as soon as today.
But the court could also kick it for touch by delaying its decision until President-elect and TikTok convert Donald Trump takes power on January 20, at which point he could issue an executive order that sets the stage for the ban to be paused and perhaps ultimately overturned.
But as things stand, the measure passed by Congress requires Apple and Google to remove TikTok from their US app stores on January 19.
The app would still work on Americans’ smartphones. But without the ability to receive security and feature upgrades, it would gradually stop working over time – and while it lasted, it would become more and more buggy. It would also work more slowly, presuming it would lose its US servers. Experts are divided on how long TikTok would remain usable on American phones, but most say it would be a matter of months.
In India, where the Government banned TikTok in 2020 following a border clash with China – then made the ban permanent in 2021 – ByteDance simply stopped offering any access.
The US ban also applies to websites, so Americans could not continue to access TikTok on their laptop’s web browser. There would be a potential workaround, given VPN (virtual private network) software can be used to mask a web browser’s country of origin. Some TikTok boosters see a VPN boom in North America. But decent VPN software costs money each month and is just too geeky for TikTok’s claimed US customer base of 170 million.
Kiwis and others outside the US would still be able to use TikTok just fine.
We could see a big narrowing in content on TikTok.
A lot of content creators are based in the US, and most would throw in the towel if they lose their home audience and their ability to upload fresh content without VPN shenanigans.
But only the TikTok towel.
Most look like they’ll stay in the social media game on other platforms. Promoting their Instagram or YouTube Shorts accounts has become many creators’ favourite topic over the past week. Many posts have simply been one word: their Instagram handle.
Talent agencies that wrangle influencers have pushed them to diversify their presence over multiple platforms – something that will hurt ByteDance even if it ultimately manages to skirt a TikTok ban.
Ad agencies have also drawn up contingency plans to cancel contracts and reallocate spending to other plans. According to a Financial Times report, TikTok drew some US$16 billion ($28b) in revenue from the US last year, mostly from ad sales (privately held ByteDance does not release accounts).
ByteDance has warned of a small business apocalypse in the event of a TikTok ban – but it could just mean Americans buy their next Stanley Cup dupe from a link promoted by an influencers’ Insta account.
And then there’s the possibility of a domino effect.
After the US banned Huawei over security concerns, it pushed its allies to do the same. The GCSB subsequently banned Spark from using the Chinese firm in its 5G upgrade in 2018, triggering a series of events that saw Huawei phones disappear from our shelves and its gear ripped out of 2degrees’ network.
Notably, our Parliamentary Service joined its counterparts in Canada and Australia in banning TikTok on MPs’ phones in 2023 – a ban that is still in place, even if our Prime Minister and many of his colleagues on both sides of the House remain enthusiastic users of the platform on personal devices, or at least those run by social media managers outside Beehive systems.
On March 7 last year, a bipartisan group of US lawmakers received a closed-door security briefing on TikTok.
Whatever those members of the Energy and Commerce Committee saw was sufficiently disturbing that they voted 50-0 to fast-track legislation that would force ByteDance to sell the app by January 19, 2025 or face a ban.
Republicans and Democrats duly banded together in a rare display of unity to pass the measure through Congress (the Senate vote was 79 to 18, the House of Representatives 360 to 58).
On Friday, with the ban now rapidly looming, the Supreme Court heard arguments that the law banning TikTok violated free speech and – in the view of ByteDance lawyers – was based on unfounded paranoia.
A New York Times account noted TikTok representatives were asked tough questions by all members of the usually divided court.
“Are we supposed to ignore the fact that the ultimate parent is, in fact, subject to doing intelligence work for the Chinese Government?” asked Chief Justice John Roberts (a conservative).
ByteDance says it operates independently from the Chinese Government and has taken steps to ensure Americans’ privacy, such as hosting its US service at data centres owned by Larry Ellison’s Oracle in Texas.
But, as noted, any procedural delay until Trump takes power on January 20 could see the ban unravel.
In the final year of his first term, Trump signed an executive order for TikTok to be sold or banned, only for ByteDance to tie up the measure in appeals until he was out of office. Trump has since become a fan of the platform, which was used heavily by his allies and supporters during the presidential campaign. The Harris campaign also had a high-rotate TikTok account.
There’s also been a shift in the background commercial landscape. Billionaire Wall St financier and Republican “mega-donor” Jeff Yass is an investor in both ByteDance and Trump Media & Technology, owner of the ex-President’s Truth Social platform. The New York Times reported that Yass had recruited a number of ex-Trump staffers to lobby against a TikTok ban. Trump said his position had not been influenced by Yass.
Meanwhile, there has so far been no indication that a TikTok sale is on the cards.
Beijing would have to sign off on the sale (in a similar manner to Western governments assessing a major asset offshore).
And it’s unclear if ByteDance would include the content-recommending algorithm that has made TikTok so addictive.
After Trump issued his first-term divest-or-leave order, ByteDance reportedly entered sale talks with Oracle, only for the US firm to go cold on the deal after it discovered the secret sauce was off the table.
This time around, a Wall Street Journal report maintains that although Beijing has publically called any forced sale of TikTok a “robbery”, there have been internal Chinese Government discussions about a possible sale to Trump confidant Elon Musk.
The Journal added, “The Chinese government hasn’t communicated with ByteDance about the contingency plans it has considered. Beijing wouldn’t order ByteDance to sell the app to a specific investor, they said, but it has a key role to play in the discussions because China’s export controls require government approval for the sale of domestically developed algorithms for recommending content to foreign entities.”
Chris Keall is an Auckland-based member of the Herald’s business team. He joined the Herald in 2018 and is the technology editor and a senior business writer.
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