TikTok Vows to Fight Its Ban. Here’s How the Battle May Play Out

Congress got one step closer to banning TikTok over the U.S. this weekend, when the House of Representatives passed a bill calling for the app’s Chinese parent company ByteDance to either sell it or face a nationwide ban. That bill now seems destined to pass the Senate and be signed into law by President Biden. “It’s almost a lock at this point,” says Bryan Cunningham, the executive director of UC Irvine’s cybersecurity policy and research institute.

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But the bill’s legislative success does not mean that TikTok is going away anytime soon. The new law, if passed, will face legal challenges, antitrust hurdles and public backlash. Here’s what lies ahead for the fate of the immensely popular video platform.

How the anti-TikTok bill gained momentum

For many months, members of the House of Representatives, and especially conservatives, have stumped against TikTok’s spread in the U.S., arguing that it is a tool for Chinese propaganda and the surveillance of the 170 million Americans that use it. Their complaints intensified in the midst of the Israel-Hamas War, when politically-charged content about the war flooded the app.

In March, the House passed a bill giving ByteDance two choices: sell the app, or face a ban. But that bill’s progress stagnated when it reached the Senate. Senators on both sides of the aisle urged caution and expressed doubt the bill would hold up to a legal challenge.

However, the House found another path forward this month: They attached a similar anti-TikTok bill to a U.S. foreign policy package that includes aid for Ukraine and Israel. The measure in the package that included the ban, as well as penalties against Russia and Iran, passed 360 to 58. And this week, the Senate is expected to vote on it. Senator Chuck Schumer wrote to the Washington Post that “The Senate now stands ready to take the next step.”

Senators who have previously expressed skepticism about a TikTok bill, including Maria Cantwell, have said that they would support this version. And last week, President Biden urged the Senate to “quickly follow” the House’s lead in passing the bill.

But the bill faces significant challenges

There is one major difference between this updated bill and the last one: It gives ByteDance more time to sell TikTok. Instead of a six-month timeline, this bill allows Bytedance nine months to sell its stake, with a possible three-month extension for a sale in-progress. This new timeline means that TikTok won’t have to divest or be shut down until after the U.S. election—to the chagrin of people who believe that TikTok could be used by the Chinese government to influence the results.

Many experts had said that completing a deal in six months would have been nigh impossible, and that a year is still ambitious. For comparison, AOL’s $182 billion merger with Time Warner in 2000 took roughly a year to finalize, while Facebook’s $19 billion acquisition of WhatsApp in 2014 took seven months to clear regulatory hurdles.

Further, finding a buyer for TikTok may be tricky. TikTok made $16 billion in sales in the U.S. last year, and is expected to garner a massive price tag that only a handful of Big Tech companies can afford. Any large potential buyer will face intense scrutiny from the E.U. and the Biden administration, which have challenged acquisitions attempted by tech giants like Microsoft, Amazon, and Google, citing antitrust laws. Meanwhile, China has vowed to oppose a forced sale of the company.

What moves can Tiktok make?

TikTok has mobilized its rabid usership to try to turn public opinion against the bill. A MoveOn petition calling for President Biden not to ban the app has garnered over 30,000 signatures. The company has also indicated that it will wage an all-out legal war in preventing the law from being enacted. The company has had success in the courts before: In 2020, federal judges blocked an attempt by President Trump to ban TikTok or force its sale.

Michael Beckerman, TikTok’s head of public policy for the Americas, wrote in an internal memo obtained by CNN that the company would “move to the courts for a legal challenge.” He wrote: “This is the beginning, not the end of this long process.”

TikTok will likely try to challenge the bill on constitutional grounds. A company spokesperson said the bill “would trample the free speech rights of 170 million Americans.” This line of argument has received support from some civil rights organizations. A representative for the American Civil Liberties Union has called the bill “unconstitutional,” and Nadine Farid Johnson, policy director of the Knight First Amendment Institute, wrote in a statement that the TikTok bill would “infringe” on “Americans’ First Amendment right to access information, ideas, and media from abroad.”

Cunningham, at UC Irvine, says that TikTok could try to challenge the law under equal protection, to argue that it disadvantages foreign-owned companies. He also expects a vigorous free speech-based challenge. But he’s doubtful that either challenge will be successful. “It doesn’t actually prohibit any speech,” Cunningham says. “It would be like trying to argue that the FCC can’t regulate who can buy and own TV stations because Americans have a right to CBS in Chicago. They don’t. They have a right to free speech, but not to a particular platform.”

What will happen if ByteDance doesn’t sell?

Even if ByteDance refuses to sell TikTok, triggering the ban, the app would not disappear from the United States overnight. Having TikTok on one’s phone would not become illegal. But the app would be taken off app stores and become ineligible for updating, making it buggier and less functional over time.

TikTok fans could use a VPN to pose as a user from abroad, or simply download the app in another country. But the barriers to entry and a declining user experience would mean TikTok would lose its edge in the market and likely fade slowly over time.

“It can’t actually be fully banned,” Cunningham says. “But the law will create a huge competitive advantage for any challenger.”

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