TikTok is coming back online, but soon-to-be President Donald Trump’s plan to save the app is already a headache for congressional Republicans who championed last year’s law to ban it.
Trump said he would issue an executive order today to give the app’s Chinese-owned parent company ByteDance 90 extra days to divest itself of TikTok before a U.S. ban kicks in.
Trump floated a joint venture for “the United States to have a 50% ownership position.” People we spoke to didn’t understand what Trump meant or how this would comply with the law.
Yet clarity on TikTok’s future has been hard to find. So we spoke with GOP lawmakers and aides Sunday to get a better understanding of what the law allows and what the road ahead might look like.
Here are the takeaways from those conversations.
Retroactive pause? Trump’s plan for a delay would be implemented a day after the ban from app stores and cloud services began. Sen. Tom Cotton (Ark.), the No. 3 Republican in the Senate, said that’s not possible.
“Now that the law has taken effect, there’s no legal basis for any kind of ‘extension’ of its effective date,” added Cotton, who also chairs the Senate Intelligence Committee.
The exact wording is an extension “with respect to the” original deadline. Confused? So are many lawyers.
Before the Supreme Court, an attorney for TikTok users said he thought an extension may not be possible after Sunday. U.S. Solicitor General Elizabeth Prelogar told the justices she wasn’t taking a position on a retroactive delay.
This will likely be a matter for the courts to decide if Trump triggers the 90-day extension.
App stores. The enforcement mechanism of the law has always been focused on the U.S. companies that host TikTok in their app stores and cloud computing services. They’re the ones staring down billions of dollars in fines if they break the law.
The app wasn’t available on Apple and Google’s app stores throughout Sunday. Apple said in a statement that apps developed by ByteDance and its subsidiaries, including TikTok, “will no longer be available for download or updates” on its app store.
Given the scale of potential liability for making TikTok available to its users, it’s unclear if U.S. companies will bring it back even if Trump does assure them they’ll be OK.
As Cotton pointed out, these companies need to be worried about enforcement beyond any steps taken by the federal government.
We asked Apple, Google, Microsoft and Amazon what they’re planning to do if Trump issues the extension. None responded.
Executive order? Trump said he’d save TikTok through an EO, but the law says the extension is dependent on the president certifying to Congress there’s been “significant progress” toward a divestiture. There must also be “binding legal agreements” on how to get the app out of Chinese hands during the 90 days.
Right now, Trump mostly seems to be considering offers to buy the app from wealthy U.S. investors and his own love of deal-making as enough to warrant an extension. But there’s been no public indication that ByteDance is close to selling TikTok.
Control. It’s pretty clear under the law that ByteDance has to give up its full stake in TikTok. But if that happens, the new ownership structure only has to remove control of the app by Beijing. Whether China can retain any stake without running afoul of the law may be a trickier question than it seems.
It’s not clear how much communication on this issue is happening at the moment between the incoming administration and Congress. We’re told TikTok didn’t come up during the Trump team’s calls with lawmakers and aides Sunday to review potential executive orders by the new president.
