TikTok: Here to Stay?

By Jessica "Lulu" Lipman
Jessica "Lulu" Lipman is a junior at the University of Pennsylvania studying English.
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TikTok, the video-sharing platform owned by Chinese company ByteDance, skyrocketed in popularity in the United States during the onset of COVID-19. As of writing, the most recent data show that the app boasts of over 100 million active American users--an 800% jump from 2019 [1]. With this surge of users, however, the Trump administration has been fighting to ban the app from American app stores, citing concerns over national security and data storage. 

In an executive order published on August 6, 2020, President Trump stated that in 45 days, Americans would no longer be able to download TikTok. This statement was shortly followed by another executive order that declared that the app would be banned entirely unless purchased by an American company before November 12 [3]. This executive order was filed under the International Emergency Economic Powers Act (IEEPA), which “gives the president broad authority to freeze the assets of and bar financial transactions with, any person or entity deemed to contribute to a foreign-origin threat.” (Boyle, Just Security). IEEPAs are incredibly difficult to overturn, given that there needs to be a veto-proof supermajority agreed upon by Congress. Specifically, a two-thirds majority from both parties is required to overturn the act, which, amidst the current political climate, is highly unlikely [4].

Trump’s orders are based on the allegation that, since ByteDance is headquartered in China, the company is sharing data from TikTok users with the Chinese government. Despite a thorough investigation, no concrete proof was found that supported such claims. Many companies have still required employees to delete the app from their phones, as researchers found evidence that, every few seconds, TikTok is copying clipboard data from iPhones. Further, in an interview with 1011 Now, Trump stated that he also wanted to ban TikTok to punish China for how it handled the COVID-19 outbreak [2].

However, on Sunday, September 27th, just four hours before the executive order was supposed to go into effect, Judge Carl Nichols of the U.S. District Court in Washington, D.C., postponed the ban on TikTok during an emergency hearing. John Hall, a lawyer representing TikTok, explained to Judge Nichols during the hearing that the ban would violate the First Amendment and create irreversible harm for the app. In response to these claims, Daniel Schwei, a Justice Department lawyer, argued that TikTok was an “immediate national security threat” (Schwei, CBS News) and that Hall did not successfully show that the ban would cause such harm to TikTok [5]. It was later revealed that Judge Nichols stated that the government did not have the authority to invoke the IEEPA Act in this case. 

Although the halting of the ban is a win for TikTok, it is not the end of their legal woes. Another executive order is rumored to go into effect on November 12th, which would render TikTok unusable in the United States. Unlike the September ban, this was not postponed by Nichols, so it can only be prevented by an American company’s purchase of the app.

So far, Oracle and Walmart have been attempting to strike a deal with ByteDance, in which the former would have control over 20% of TikTok while the latter would maintain 80% in stake. However, US Treasury Secretary Steven Mnuchin mandated that all of the code should be in the United States and that Oracle should be in charge of reconstructing the code and ensuring its safety. Further, the U.S. government claimed that ByteDance would need to surrender the majority of the stock in order for the deal to be satisfactory. If these provisions are not met, a deal will not be made, and the app will be banned. In another twist, China declared in August that, for the fundamental technology of TikTok to be sold, the deal will also require Beijing’s approval [6].

At this point, TikTok’s future is very unclear. The potential ban has prompted many well-known creators to move their content from TikTok to other apps, chiefly Triller, an America-based music video making app that shares similarities with TikTok. Ryan Kavanaugh, majority owner of Triller, has successfully ushered prominent influencers like the Sway Boys to begin posting on Triller in exchange for company stock and lavish dinners. While Triller has not yet reached Tiktok’s level of popularity, its user base has been growing exponentially, and many new sources have branded the app as a feasible alternative to TikTok [7]

The United States is not the only country battling TikTok. India banned the app in June 2020 due to border disputes with China [8], while Indonesia temporarily did the same in 2018 due to “inappropriate content” (Allen, Distractify). Both Japan and Pakistan have also recently expressed threats to ban the app. TikTok has been actively campaigning to ensure that it does not succumb to the same fate as it did in India, expressing that an executive order to ban the app would set a “dangerous precedent for the concept of free expression and open markets” (Allen, Distractify) and warning of possible legal action against the American government if the issue is not resolved [9]. It appears that anything could happen to TikTok between now and November 12.
 
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[1] Sherman, Alex. “TikTok reveals detailed user numbers for the first time” (24 Aug 2020) CNBC. https://www.cnbc.com/2020/08/24/tiktok-reveals-us-global-user-growth-numbers-for-first-time.html
 
[2] Russ Mitchell and Suhauna Hussain. “Promising a TikTok ban, Trump escalates tech war with China” (31 July 2020) Los Angeles Times. https://www.latimes.com/business/technology/story/2020-07-31/trump-administration-prepares-forced-sale-of-tiktok-national-security-threat


[3] Paul, Kari. “Trump’s bid to ban TikTok and WeChat: where are we now?” (29 Sept 2020). The Guardian. https://www.theguardian.com/technology/2020/sep/29/trump-tiktok-wechat-china-us-explainer
 
[4] Boyle, Andrew. “The Troubling Free Speech Implications of Trump’s TikTok/WeChat Sanctions” (8 Sept 2020). https://www.justsecurity.org/72322/the-troubling-free-speech-implications-of-trumps-tiktok-wechat-sanctions/
 
[5] “Federal judge halts TikTok ban hours before it was set to go into effect” (28 Sept 2020). CBS News. https://www.cbsnews.com/news/tiktok-ban-federal-judge-postpones/
 
[6] Klein, Jodi Xu. “TikTok will be shut down if Oracle does not meet US security requirements, Treasury secretary says” (1 Oct 2020). South China Morning Post. https://www.scmp.com/news/china/article/3103752/tiktok-will-be-shut-down-if-oracle-deal-does-not-meet-us-security

[7] Lorenz, Taylor. “Fancy cars, fine dining, creator mansions, cash: Triller is shelling out for talent” (7 Oct 2020). New York Times. https://www.nytimes.com/2020/10/07/style/triller-app-tiktok.html
 
[8] Pahwa, Nitish. “What Indians lost when their government banned TikTok” (7 Aug 2020). Slate. https://slate.com/technology/2020/08/tiktok-india-ban-china.html
 
 
[9] Allen, Joseph. “Trump is set to ban TikTok from the U.S. – what other countries have done that?” (Aug 2020). Distractify. https://www.distractify.com/p/what-countries-have-banned-tiktok#:~:text=Along%20with%20India%2C%20the%20U.S.,on%20the%20platform%20in%202018.

The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

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