Court upholds a U.S. ban on TikTok

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After President Biden signed a law banning TikTok unless it divests from its China-based owner ByteDance, the viral video app sued to block it, arguing the act violates the First Amendment rights of millions of Americans. / Getty Images

A federal appeals court on Friday upheld a law banning TikTok nationwide unless the viral video app was sold off by its China-based parent company, rejecting TikTok's claim that the crackdown violates the free speech rights of millions of Americans.

In its ruling, the court said that it was "precisely" because of TikTok's "expansive reach" that both Congress and the president determined that divesting it from China's control "is essential to protect our national security."

In its opinion, the court wrote that TikTok's ownership by a China-based company, ByteDance, represents a national security threat that surpasses the free speech concerns TikTok raised.

"The First Amendment exists to protect free speech in the United States. Here the Government acted solely to protect that freedom from a foreign adversary nation and to limit that adversary's ability to gather data on people in the United States," the court wrote.

Critics of banning TikTok, including the Knight First Amendment Institute at Columbia University, were alarmed by the court's decision.

"This is a deeply misguided ruling that reads important First Amendment precedents too narrowly and gives the government sweeping power to restrict Americans' access to information, ideas, and media from abroad," said Jameel Jaffer, the group's executive director. "We hope that the appeals court's ruling won't be the last word."

A TikTik spokesman said the company plans on appealing to the Supreme Court. "The TikTok ban was conceived and pushed through based upon inaccurate, flawed and hypothetical information, resulting in outright censorship of the American people," the spokesman wrote. "The TikTok ban, unless stopped, will silence the voices of over 170 million Americans."

The ruling, by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, delivered the Biden administration a significant victory, but sets TikTok on an uncertain path.

President-elect Donald Trump has vowed to save TikTok. What that means, however, could take on several different forms.

Under the law, TikTok has until Jan. 19 to be sold off from its Beijing-based owner ByteDance, or face a nationwide ban. That deadline may be extended by 90 days if there is "significant progress" toward a sale. So one option could be that the enactment date is forestalled and Trump tries to broker a deal for the app to be acquired by an American company or group of investors.

China has for years opposed the forced sale of TikTok, but China analysts say officials there may now attempt to put the app on the auction block as leverage in trade talks with the incoming Trump administration. TikTok's current position, though, remains that TikTok is not for sale.

Trump can also declare that steps TikTok has taken to distance itself from ByteDance, including a plan known as Project Texas that walls off Americans' data from China, qualifies as divestiture. Trump may also instruct his attorney general to not enforce the law.

Banning TikTok is not as simple as flipping an "off" switch. The law targets app stores controlled by Apple and Google, forcing the tech giants to remove TikTok. And makes it illegal for web-hosting companies to support TikTok.

Google and Apple have not said how they would respond to the law. And it is unclear what exactly web-hosting firms would do, given Trump's stated goal of rescuing the app amid a looming legal deadline.

But even if the law was being enforced by a presidential administration, TikTok would slowly wither on the vine. Its 170 million American users would not see the app disappear from devices. Instead, software updates would stop being fed to the app. Over time, TikTok would become slow, glitchy and eventually unusable.

Trump, who during his first administration tried to put TikTok out of business, reversed his position on the campaign trail, citing in one social media post that a TikTok ban would only boost the business of Meta, which he has criticized for his unproven belief that the social media company hurt him in the 2020 presidential election.

A drawn-out appeals process could come next. Either party can ask for the D.C. appeals court to re-examine the case. From there, the Supreme Court can also be asked to review it.