By Raphael Satter and Alexandra Alper
WASHINGTON (Reuters) – When Donald Trump ordered the U.S. government to ban popular Chinese social media app TikTok in 2020, he said the “aggressive action” was necessary “to protect our national security.”
Now the Republican president-elect, who will assume his second term in the White House on Monday, is seeking to protect TikTok from a new law that gives TikTok parent ByteDance until Sunday to sell the app to an American buyer or be banned in the U.S. President Joe Biden, with just three days left in office, is being urged to give ByteDance more time to sell the app.
“We will put measures in place to keep TikTok from going dark,” Trump’s incoming national security adviser, U.S. Representative Mike Waltz, told Fox News’ “Fox & Friends” on Thursday.
So how could Trump or Biden prevent TikTok from going dark?
BIDEN TO THE RESCUE?
The TikTok law gives the president the authority to grant a one-time extension of up to 90 days on the deadline for a sale, if he certifies that there is a path for – and evidence of progress toward – a divestment, including “binding legal agreements,” which the law does not define.
Meeting those requirements would make it feasible for Biden to give ByteDance a nearly three-month reprieve, according to Colin Costello, an attorney with Freshfields and a former official in the Office of Director of National Intelligence. He said the binding legal agreement criteria could potentially be met by the signing of a simple “term sheet” between ByteDance and a prospective buyer, although no such deal appears on the horizon.
But to halt the ban on a longer term basis, Costello said, could require incoming President Trump to direct his Justice Department to “deprioritize” or not enforce the law, probably for a specified period of time. That would take a page from former President Barack Obama, whose administration in 2012 decided to use “prosecutorial discretion” to grant deportation relief to immigrants who came to the U.S. illegally as children.
In TikTok’s case it could give Congress time to consider a new bill that would give ByteDance another 270 days to find an American buyer before being shut down.
Still, the new law threatens to penalize the tech companies, that make TikTok available via their app stores — Apple Inc (NASDAQ:) and Alphabet (NASDAQ:)’s Google — and it is unclear whether their lawyers would risk continuing to offer the app.
“That would put Apple and Google … in a real spot,” said Costello. “Here they would have the president saying he was not going to enforce the law although they would still be in clear violation of the law.”
TRUMP COULD GET ‘CREATIVE’
Trump could issue an executive order, invoking the sweeping International Emergency Economic Powers Act, and claim that keeping TikTok is beneficial for national security, said Anupam Chander, a professor at Georgetown University’s Georgetown Law School who has followed the issue.
Trump could argue, for example, that such a move would keep users from fleeing to Chinese app RedNote, which is run directly from China and subject to Communist Party censorship. The order could tell tech companies like Apple or Google that they would face no consequences for flouting the law, for example by keeping TikTok in their app stores past the legally mandated deadline.
Such a scenario would not be without its challenges, Chander said.
“When the president can refuse to enforce the direct mandate of the law and promise the subjects of the law that it will not be enforced on them, that opens a can of worms,” he said.
“I don’t want to say it’s illegal,” he said. “It’s creative and it’s an affront to Congress, but when you give the president open-ended national security authority, he might exercise it in unexpected ways.”
SUPREME COURT TO RESCUE
The smoothest path for a TikTok rescue would be for the Supreme Court to issue a stay in the lawsuit the app has filed against the government, allowing the incoming Trump administration to make a fresh argument to the court to the effect that TikTok wasn’t so bad after all.
That would still represent a dramatic break from Trump’s past attacks on TikTok, but it would avoid plunging the government into a legal or constitutional morass.
But time is running short. The court has only one business day between now and Sunday, when the law’s divestment order kicks in.
“The Supreme Court could still rescue President Trump’s promise to keep TikTok alive,” Chander said. “We may find out tomorrow that it’s too late.”
