U.S. President Donald Trump on Monday, his first day back in office, signed an executive order postponing the country’s ban of TikTok for 75 days. But whether this move was lawful is up in the air.
The ban — signed into law by the Biden administration and upheld by the Supreme Court — gave the Chinese parent company ByteDance until Sunday to sell its stake in the popular social media platform or have it outlawed in the U.S.
Lawmakers on both sides of the aisle had alleged TikTok could be used by the Chinese government to spy on U.S. citizens.
But there are few signs Trump had the power to override the law.
“Executive orders cannot override existing laws,” said Sarah Kreps, director of Cornell University’s Tech Policy Institute.
The law has a provision that allows a 90-day extension if there has been progress toward a sale before its effective date. The app went dark in the U.S. on Saturday evening, but was restored the next day, with a message to U.S. users that the company was working with the Trump administration to find a solution.
Chinese social media app RedNote has been thrust into the limelight after more than half a million TikTok users recently joined the platform in protest against a likely imminent ban on the short video app in the United States, set to take effect Sunday. Technologist Jason Snyder says RedNote could ‘surveil or exploit users,’ adding that the real danger comes with its ‘ability to control narratives.’
Kreps says it’s even less certain that that provision can be applied retroactively, given that the law was already in effect when Trump signed his order.
“It’s not clear that the new president has that authority to issue the 90-day extension of a law that’s already gone into effect,” she said.
She also doubts the conditions for a delay exist at this point — without so much as even a potential buyer being named to prove that a sale was moving along. Various media reports have mused about whether Tesla and SpaceX CEO Elon Musk would buy the platform, or if Mark Zuckerberg’s Meta would be interested.
Trump, who had earlier opposed TikTok’s presence in the U.S., told reporters he changed his mind once he used the app himself.
TikTok has meanwhile continued to operate as usual in Canada and elsewhere.
First Amendment issue
The Supreme Court approached the TikTok ban as a First Amendment issue, and whether the law violated TikTok’s or its users’ right to freedom of expression, says Anupam Chander, a law professor at Georgetown University.
The court “doesn’t judge the merits of the law. It doesn’t judge the timeline of the law. It simply says, did Congress have the power to pass this law?” he told CBC News.
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Ultimately, it deemed the law constitutional, citing Congress’s concerns with the app’s data collection.
Chander, who is an expert on the regulation of new technologies, says Trump’s postponement of the ban could be challenged in court though, he adds, “it’s not clear who would have standing in U.S. courts to bring that challenge.”
This, he says, is an example of the “danger” posed by executive orders.
“If you can say, ‘Hey, newspaper, you’re going to be gone, and I can decide your fate in this country,’ it makes the newspaper very compliant, to say the least.”
That was part of an argument made by the Supreme Court — in a separate, broader case about social media platforms — in July, when Florida and Texas argued that the government should limit how those platforms regulate content posted by their users.
The court released an opinion which argued that the platforms — like newspapers — should be protected from government intrusion in determining what to include or exclude in the virtual space.
U.S. Rep. Frank Pallone, a New Jersey Democrat, has suggested that Trump’s move was illegal, saying that the newly sworn-in president was “circumventing national security legislation passed by an overwhelming bipartisan majority in Congress.”
House Speaker Mike Johnson, a Republican, has not commented on the legality of Trump’s move but has said he expects a full sale to go through.
But Trump might have other plans, suggesting to reporters on Monday that the government could strike a deal with ByteDance to buy a 50 per cent stake in TikTok. Whether Beijing, which has been protective of TikTok in the face of U.S. threats, would entertain the thought is another potential barrier.
And yet, China’s vice-president met with U.S. vice-president J.D. Vance and Musk on Monday after attending Trump’s inauguration, where TikTok CEO Chew Shou Zi was also present.
If a sale goes through, a partly U.S.-owned version of TikTok would likely be cut off from the rest of the world, according to Chander — not unlike the Chinese social media platform Douyin, a TikTok-like sister app that operates only in China for a Chinese-only market.
Those optics might not be good for the U.S., says Chander.
Douyin operates only in China because it’s “a very heavily censored environment,” he said. “And that’s not what we typically do in the United States.”
“Canadians would be off talking with the rest of the world and Americans would be off talking to ourselves. That’s not a good look for the United States and it’s unhelpful for the rest of the world.”