Tiktok’s Final Appeal to the Supreme Court Didn’t Go Too Well

The looming TikTok ban is barely a week away and the company is running out of time to do anything about it. On Friday, the Supreme Court heard last-minute arguments about the ban, with TikTok angling for an intervention or, at least, a temporary ruling to buy it a bit more time. They didn’t go especially well for TikTok — even justices who sounded sympathetic to the company’s arguments about free speech seemed satisfied by the government’s core national security argument.

As a matter of law, in other words, it’s looking like the ban is going to happen, and probably right before Donald Trump once again takes office. This is a completely unprecedented event — a massively popular app with a major cultural and economic footprint in the United States might just get switched off — but also something that the incoming president, who effectively originated the ban in the form of an executive order in 2020 but has since become aware that some people on the app actually like him and has also raised a bunch of money from one of its biggest American investors, now says he doesn’t want to happen.

The court was concerned, mostly, with the substance of the law, which requires that TikTok either be sold to an American company or banned entirely, but the justices did briefly touch on the urgent question of what might practically happen next in the real world. Congress passed a law. Trump can say he doesn’t support it, but it’s still on the books, and it passed with substantial bipartisan support. If he really wants to stop it, he’ll have to do something about it, and the available options are all pretty messy.

According to the law, he could, as president, temporarily pause the ban if the company demonstrates its intent to imminently sell, but TikTok parent company ByteDance has strongly suggested that this isn’t possible, not least because of tightening Chinese export controls around algorithms and AI. Should ByteDance agree to offload an algorithmically stripped-out version of TikTok — something at least one credible buyer has nonetheless expressed interest in — Trump, who would also be able to unpause the ban, would have a great deal of influence over the terms of the deal. But the app would almost certainly experience an interruption in service and return, eventually, as something fundamentally different.

Near the end of the hearing, though, Justice Kavanaugh floated the possibility that’s most aligned with how Trump is talking about this at the moment: “Could the president say we are not going to enforce this law?” Indeed, this is an approach he’s been implying, it certainly matches his mental model of how government should work — TikTok is unbanned if I say so — and it seems like something he might at least attempt.

Kavanaugh helped answer his own question: Trump could do this, he noted, but it would create serious practical problems. One way the ban is intended to work is by making it illegal to provide “services to distribute, maintain, or update such foreign adversary controlled application,” meaning that Apple and Google, which between them maintain the app stores on virtually all of America’s smartphones, would be legally required to delist the app. A promise by Trump not to enforce a TikTok ban, or to unilaterally and/or counterfactually declare TikTok in compliance with the law, would leave Apple and Google in a risky position. They could relist an app that’s still technically illegal but which the President says is actually fine in support of a company to which they have no particular reason to help and which is in fact, in Google’s case, a direct competitor.

Or they could just say: Hey, hosting a service that has been declared a “FOREIGN ADVERSARY CONTROLLED APPLICATION” by lawmakers isn’t worth the trouble even if the president says he’s personally totally cool with it. This would be prudent — unless, of course, such an action would be interpreted as a slight against the president and wielded against them publicly or privately, in which case two of American’s largest companies, each facing ongoing antitrust cases, might just have to hire a few dozen more lobbyists and OFAC attorneys and figure out how to make things work. Welcome to the new tech industry.