Following years of public scrutiny over TikTok’s ties to China, the Senate passed a bill Tuesday that would require TikTok’s parent company, ByteDance, to divest from the app within nine months or face a ban in the U.S. The bill, which already cleared the House last week, was part of a $95 billion aid package for Ukraine, Israel, and Taiwan, which President Joe Biden said he will sign into law on Wednesday.
TikTok has sought to marshal its army of 170 million American users to fight back against the bill and has already promised to challenge it in court. Last week, the company accused lawmakers of “using the cover of important foreign and humanitarian assistance to once again jam through a ban bill that would trample the free speech rights of 170 million Americans, devastate 7 million businesses, and shutter a platform that contributes $24 billion to the U.S. economy, annually.”
And yet, despite the president’s promise to sign the aid package into law, complete with the TikTok provision, the app’s fate in the U.S. remains uncertain. For one thing, the bill could still face pushback from the courts, as was the case in 2020 when then-President Donald Trump attempted to force a sale of the app under threat of a ban.
Here are some of the urgent questions now lingering over TikTok:
How will the courts respond to TikTok’s challenge?
TikTok has framed the divest-or-ban bill as an affront to free speech. If the U.S. government has the power to ban a platform that enables free expression over supposed national security concerns, the thinking goes, where does that power end? First Amendment scholars and civil liberties groups say the bill is unlikely to pass constitutional muster.
“This is still nothing more than an unconstitutional ban in disguise,” Jenna Leventoff, senior policy counsel at the ACLU, said in a statement Tuesday. “Banning a social media platform that hundreds of millions of Americans use to express themselves would have devastating consequences for all of our First Amendment rights, and will almost certainly be struck down in court.”
If history is any indication, the bill’s doubters may have a point. President Trump’s efforts to force a sale of TikTok were blocked repeatedly in the courts. One U.S. district judge found that the government’s description of the national security threat posed by TikTok was largely “hypothetical” and that its actions would inhibit “a platform for expressive activity.” Another judge blocked a TikTok ban in Montana last year, citing First Amendment concerns.
Ultimately, some critics of the bill argue a ban would be ineffectual, because the Chinese government would still have access to Americans’ data through data brokers and could still spread its propaganda through U.S.-owned platforms. Nadine Farid Johnson, policy director of the Knight First Amendment Institute at Columbia University, said in a statement that the TikTok bill would infringe on Americans’ free speech rights “with no real pay-off.”
How will the threat of a ban impact TikTok in the interim?
Even if the law is ultimately stopped by the courts, it has the potential to wreak havoc on TikTok as a company in the meantime. In 2020, the company’s former interim head, Vanessa Pappas, said in a legal filing that the company lost $10 million in revenue after Trump signed the executive order requiring the sale of TikTok, as brands quickly canceled their advertising deals.
Pappas said the looming shutdown also harmed the companies’ employees and its ability to attract new ones. “Since July 1, 2020, 52 candidates have declined offers of employment with ByteDance and TikTok Inc. specifically due to the perceived uncertainty caused by the government’s investigation of and threats against TikTok,” she wrote at the time.
TikTok’s leaders have since sought to shore up employees’ confidence in the company. In a company memo reported by The Information, TikTok’s head of public policy Michael Beckerman wrote, “This is the beginning, not the end of this long process.”
Still, it’s hard not to see how employees—as well as the millions of business owners and influencers who rely on the platform—won’t be working on backup plans as that long process plays out.
Who might line up to buy TikTok?
There is of course, also the longshot possibility that ByteDance will sell TikTok to a new owner within the nine months allotted in the bill (The president can also extend that deadline by 90 days).
In 2020, Microsoft, Oracle, and Walmart were vying for ownership of the company, making any of those companies seem like potential acquirers. Oracle’s servers already house the TikTok platform in the U.S. through TikTok’s Project Texas program, which was intended to address precisely the concerns about China’s access to U.S. data now being raised in the divest-or-ban bill.
Others including former Treasury secretary Steven Mnuchin and Canadian businessman Kevin O’Leary have each publicly stated their interest in acquiring TikTok, while former Activision CEO Bobby Kotick has reportedly expressed his interest privately in conversation with ByteDance cofounder Zhang Yiming, according to The Wall Street Journal. The Journal reported that Kotick also raised the idea of partnering with OpenAI to buy it, which would allow OpenAI to use TikTok content to train its AI models. If such a sale were to occur, it would undoubtedly raise a slew of new concerns over competition and data privacy.
How will the fight over TikTok impact the 2024 election?
Despite his own efforts to force a sale of TikTok in 2020, former President Trump is now encouraging voters to blame President Biden for any potential shutdown. “Just so everyone knows, especially the young people, Crooked Joe Biden is responsible for banning TikTok,” Trump wrote on Truth Social Monday, where he also accused Biden of pushing the ban to “help his friends over at Facebook become richer and more dominant.”
Polling shows that Americans are split on the subject of a ban. According to a February poll by The Associated Press and NORC Center for Public Affairs Research, 31% of U.S. adults support a nationwide ban, while 35% oppose it. And yet, the opposition is much higher among people who use TikTok daily, 73% of whom oppose it. That segment of the population undoubtedly skews young; Polls suggest TikTok is now the leading news source for Gen Z, which is a key constituency for Democrats. In a sign of the TikTok generation’s importance to this election, President Biden’s campaign has been running its own account, which was posting videos on the app on Tuesday, even as Congress was voting to potentially ban it.
Trump’s about-face on TikTok, meanwhile, may be related to his financial ties to TikTok investor and conservative megadonor Jeffrey Yass, who has a large stake in the company that recently merged with Trump’s own media company. Whatever his reason, it’s worth remembering: While President Biden will be the one to sign the bill into law, it’s whoever wins November’s election who will oversee the ban if and when it goes into effect next year.
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