On January 17, 2025, in the coordinated cases of TikTok v. Garland (No. 24-656) and Firebaugh v. Garland (No. 24-657), the Supreme Court unanimously upheld the Protecting Americans from Foreign Adversary Controlled Applications Act. This bipartisan law bans TikTok in the United States if TikTok’s Chinese parent company, ByteDance, does not sell the popular web-based video-sharing platform to a non-Chinese owner. In an unsigned opinion, the Court rejected TikTok’s First Amendment challenge to the new divest-or-be-banned law and ruled that it was justified by the threat of China’s collecting sensitive data from TikTok’s U.S. users to influence U.S. public opinion by manipulating their personalized video feeds. Concurring only in the outcome reached by the Court, Justice Gorsuch wrote separately to observe that the cases had moved through the Supreme Court very quickly and that he did not have “the kind of certainty I would like to have about the arguments and record before us. All I can say is that, at this time and under these constraints, the problem appears real and the response to it not unconstitutional.”
The new law took effect on January 19—two days after the Court’s decision and one day before President Trump re-entered office. An interesting feature of these cases is that President Trump, who wanted to ban TikTok during his first administration, filed an amicus brief asking the Justices to pause the Act’s Jan. 19 deadline so that he could re-enter office and negotiate a deal with the appropriate stakeholders. At oral argument, the Justices spent little time talking about his request, and the Court’s decision did not address it.
So why is TikTok still up and running in the U.S.? Great question. Despite the Court’s decision, the Biden administration stated that it would not enforce the TikTok ban. TikTok is reportedly used by more than 170 million Americans. In light of the Court’s decision, however, the social media platform briefly went dark in the U.S. days before President Trump re-entered office. He then signed an executive order granting TikTok a 75-day extension to comply with the ban if it is not sold. TikTok came back online in the U.S. with a short message thanking President Trump for his efforts. To be clear, President Trump’s executive order does not overturn the law or the Court’s decision—a president could do neither of those things. Instead, the executive order instructs the Attorney General not to enforce the law for now, which is within the president’s power. That buys time for the administration to, as the order explains, “determine the appropriate course of action.” Google and Apple have not yet restored TikTok (or other ByteDance apps that were removed) to the App Store or Google Play.
For more information, please contact Chantel Febus, James Azadian, or Christopher Sakauye.