Donald T. has a heart for Tiktok
Tiktok is fighting the US ban before the US Supreme Court. One of the arguments: The President-elect wants to save Tiktok.
(Image: Camilo Concha/Shutterstock.com)
"I'm gonna save Tiktok," said US President-elect Donald Trump on November 12. In German: "I'm going to save Tiktok." Tiktok is now using this as one of its arguments in an urgent application to the US Supreme Court. According to the petition, the Supreme Court should declare the legal Tiktok ban unconstitutional, which is due to come into effect on January 19, 2025 – one day before Donald Trump takes office as US President.
On Monday, Trump added: "I have a warm spot in my heart for TikTok." In German: "Tiktok has a warm spot in my heart." This is an about-turn from his approach as US President just over four years ago. Back then, Trump ordered a ban on Tiktok and Wechat, which was later lifted by his successor in office, Joe Biden. But then the US legislature stepped in: both US parties jointly passed a law banning Tiktok with a clear majority.
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Tiktok is fighting this law in court, so far without success. The law stipulates that Tiktok had to go directly to the Federal Court of Appeals for the Capital District of DC, which the company did and lost. The law precludes an ordinary appeal. By its own admission, however, the Court of Appeals, which has jurisdiction in the first and last instance, worked particularly quickly to allow Tiktok to file an emergency appeal to the Supreme Court. However, the court refused to grant a stay. Tiktok is therefore now trying the US Supreme Court. However, Tiktok has no legal right to be heard there; the Supreme Court only accepts a fraction of all applications for hearing.
Emergency application for a stay
Monday's emergency application is initially intended to obtain a stay so as not to create a fait accompli. If the Supreme Court grants the postponement, the high court judges can take their time to consider whether they want to accept the case. And in the meantime, the matter may become superfluous, as Trump has recently decided not to ban the video service, but to save it.
Why Trump now claims to be entering the ring for the Chinese company is quickly explained: he believes he won among young Americans in November with a 34 percentage point lead over his main presidential opponent Kamala Harris. In fact, according to pollsters, Harris won by six percentage points among this group.
The facts do not dispute Trump. He has declared the US service Facebook an enemy of the people because it temporarily blocked Trump's account after the attempted coup in early 2021. And because Trump believes that the young people he considers to be his fans love Tiktok, he now wants to save this platform. Tiktok and its Chinese parent company Bytedance couldn't care less, the public support is a nice argument before the Supreme Court.
Although Trump, as US President, cannot repeal the law on his own authority, he could extend the deadline by 90 days under certain conditions. Above all, however, he has influence over the authorities that would have to enforce the law. The new president could publicly urge his justice minister and chief prosecutor to allow Tiktok's US service providers to comply. If they rely on the authorities to turn a blind eye, Tiktok would continue to operate as usual despite the legal ban.
Tiktok: "The law is repeatedly unconstitutional"
"It would be in no one's interest [–] neither the litigants, the public, nor the courts [–] if Tiktok's statutory ban went into effect before the government halts enforcement just hours, days, or weeks later," Tiktok wrote to the Supreme Court. Of course, the company makes an even tougher legal argument. The service is used by 170 million Americans who use it to express themselves publicly. The First Amendment of the US Constitution guarantees freedom of speech, which is why the ban is unconstitutional. Neither legislation nor the government had shown how Tiktok content was being manipulated from China.
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Moreover, there is unequal treatment because the law explicitly exempts other applications from the ban – and Tiktok unsurprisingly argues that these competitors pose at least as great a risk to US national security. Since Tiktok and Bytedance are named in the law, it is a condemnation by statute, as well as an expropriation without substitution – both expressly prohibited by the US Constitution. And there would be less severe means than a ban to achieve the objectives of the law. Shutting down operations in the US would cause irreparable harm to Bytedance.
Tiktok had worked with the US authority CFIUS (Committee on Foreign Investment in the United States) for a long time to develop a plan to dispel concerns about national security. The intended measures included a supervisory body to monitor the data of US users, whose members would have to be approved by the US government. According to Tiktok, the agreement would have protected US users from foreign influence on moderation, algorithms and source code. The company also claims to have already started implementing some measures and spent more than two billion US dollars on them. However, the CFIUS has given up its cooperation and the legislator has issued the ban.
Sale option is utopian
Theoretically, the law has a way out: Bytedance would have to sell Tiktok to a US buyer within the next five weeks, but would then not be allowed to share any data with the sold company or cooperate with regard to the algorithm for recommending content. This algorithm is considered to be Tiktok's secret recipe for success. The People's Republic of China has already banned its export, so Bytedance cannot sell it to a US buyer. Without the algorithm, Tiktok is worth very little.
This residual value would be reduced to almost zero by the legally required separation of content into "American" and "other", especially as American users like to consume short foreign videos. In Bytedance's opinion, it would be impossible to sell the content within the planned timeframe. Nobody would be able to understand and use the extensive source code without its Chinese programmers. This makes the sale not only legally and economically impossible, but also technically impossible.
The case before the US Supreme Court is Tiktok et Bytedance v Merrick B. Garland, case no. 24A587. In addition, some Tiktok users have appealed to the Supreme Court, this case is called Brian Firebaugh v Merrick B. Garland, Case No. 24A588.
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