It's Official: Tiktok Is Set To Be Banned. Here's What Happens Next.

The Supreme Court on Friday upheld a law that forces the sale of TikTok, leaving the video-sharing app to be banned in the U.S. in two days if no deal is struck.

Siding with the government, the justices upheld a lower court ruling that Congress did not violate the First Amendment when it passed the sell-or-ban law last year on national security grounds. TikTok had argued otherwise before the justices last week.

“There is no doubt that, for more than 170 million Americans, TikTok offers a distinctive and expansive outlet for expression, means of engagement, and source of community,” the court wrote in an unsigned opinion. “But Congress has determined that divestiture is necessary to address its well-supported national security concerns regarding TikTok’s data collection practices and relationship with a foreign adversary.”

The court also declined to stave off the impending deadline for the sale of TikTok. Starting Sunday, if the company is not sold, app stores and cloud providers who continue to host it could face billions of dollars in fines.

Still, it is unclear if the ban will be implemented right away. A White House official indicated President Joe Biden will not enforce the ban, and President-elect Donald Trump has vowed to “save” TikTok.

Trump argued in a brief to the high court that he could negotiate a deal to allay national security concerns while keeping the app online in the U.S.

What did the justices say?

“The challenged provisions further an important Government interest unrelated to the suppression of free expression and do not burden substantially more speech than necessary to further that interest,” the justices wrote in their opinion, which was labeled “per curiam,” meaning it was issued by the court as a body and not authored by any single justice.

The opinion said the law was justified by concerns that the platform was gathering data on more than 100 million Americans, which the Chinese government could tap into to undermine U.S. national security.

However, the court declined to embrace arguments that potential Chinese influence over the content Americans see on the platform was a sufficient basis to justify the ban.

“The record before us adequately supports the conclusion that Congress would have passed the challenged provisions based on the data collection justification alone,” the court wrote.

Justice Neil Gorsuch, a Trump appointee, declined to join the court's opinion, but concurred in the decision to uphold the law. Still, he sounded a note of skepticism. “Whether this law will succeed in achieving its ends, I do not know. A determined foreign adversary may just seek to replace one lost surveillance application with another,” he wrote.

Justice Sonia Sotomayor, an appointee of former President Barack Obama, joined the majority opinion only in part.

No justice dissented from the bottom-line result.

What happens to TikTok?

The way the ban works, TikTok will no longer be able to be downloaded legally from app stores. Google and Apple haven’t revealed their plans for Jan. 19, but are expected to comply with taking TikTok down given the enormous fines at stake.

Even so, users with TikTok already downloaded can still access the app. But other service providers will be barred from supporting it, the app will stop updating and gradually become unusable.

The freeze-out would happen much quicker if TikTok itself decides to switch off the app for U.S. users, as recentreports indicate the company is considering. TikTok’s attorney Noel Francisco told the Supreme Court that if the company lost the case, “As I understand it, we go dark. Essentially, the platform shuts down.”

The ban would be averted if ByteDance sells TikTok, but it has refused, calling divestiture impossible both technologically and commercially. Some lawmakers and Biden administration officials have predicted that ByteDance will relent after the Supreme Court has spoken and a ban looks imminent.

What could Biden do?

On Thursday, a White House official and lawmakers from both parties shot down the idea of Biden using his final day in office to grant TikTok more time to split from its Beijing-based owner, ByteDance. They said the president had no authority to grant an extension since the law required a “credible plan” of a sale in the works.

But a White House official also implied it will not enforce the ban against Google and Apple if they don’t comply by Sunday — marking a decided shift from the administration whose Justice Department helped write the law and has been defending its constitutionality through the courts.

“Given the timing of when it goes into effect over a holiday weekend a day before inauguration, it will be up to the next administration to implement,” the official said.

What about Trump?

Without a sale, TikTok will technically be banned by the time Trump enters the Oval Office, which complicates his calculus for any dealmaking but could also generate momentum.

“Allowing the law to go into effect will be the headline news for quite some time. Supreme Court defies Trump. Tiktok ban goes into effect over Trump's will,” University of Pennsylvania law professor Gus Hurwitz told POLITICO. “That will give Trump an antagonist — the Supreme Court — to be political against.”

Trump has been waiting on the court before making moves. “I will make a decision,” he said most recently about TikTok in a Newsmax interview Monday. “Nobody knows what they can do and who’s going to do it until they hear from the Supreme Court.”

Like Biden, Trump could direct the Justice Department to shield companies from penalties for keeping TikTok on American app stores. The Trump team has reportedly considered a dubiously effective executive order to do just that, delaying the law’s enforcement by 60 to 90 days, The Washington Post reported on Wednesday. Pam Bondi, Trump’s pick for attorney general, refused to commit to defending the TikTok law during her confirmation hearing this week.

Still, the companies may decide to preemptively stop hosting TikTok anyways to avoid risk.

Although “many of the tech companies have been pivoting towards a desire to work with the Trump administration,” Hurwitz said he doesn’t think they “would be willing to open up that sort of potential liability, or even more, that much of a potential cudgel for the president to use against an industry that has rocky relationships with him.”

Congress may also resist such a workaround. House China Select Committee Chair John Moolenaar (R-Mich.) and Ranking Member Raja Krishnamoorthi (D-Ill.) have sent letters telling the CEOs of Google and Apple they must prepare to remove the app from their stores on Jan. 19.

Trump could attempt to use the law’s provisions to find a solution that would keep TikTok intact.

He could declare that TikTok has already divested because of Project Texas, an existing arrangement that stores its U.S. users’ data on Oracle's servers. According to former DOJ official and University of Minnesota law professor Alan Rozenshtein, the law could be interpreted to allow the president to determine what constitutes a “qualified divestiture.”

Rep. Mike Waltz (R-Fla.), Trump’s incoming national security adviser who would likely be advised on such a move, said Wednesday on Fox News, “We’re going to find a way to preserve [TikTok] but protect people’s data.”

The law also allows the president to grant a one-time 90-day extension if he certifies to Congress that significant progress has been made toward divesting TikTok and the “relevant binding legal agreements” are in place. Whether Trump can use that was the subject of debate at the Supreme Court — and the option may be less appealing after TikTok is banned.

“He can't do that on January 19th,” TikTok’s attorney Francisco said about Trump Friday when Justice Brett Kavanaugh asked. “It is possible that come January 20th, 21st, 22nd, we might be in a different world.” Solicitor General Elizabeth Prelogar, who was defending the government, said it would tee up a “statutory interpretation question” over if an extension is allowed once the divestiture period has ended.

What will Congress allow?

Trump’s most politically challenging option is convincing Congress to repeal or amend the law in TikTok’s favor. An effort by Democrats to fast-track a bill extending the deadline to sell TikTok fizzled this week in the Senate.

Still, many Republican China hawks said a sale was the only way they would allow TikTok to keep running in the U.S.

“Divestiture is the way it has to be done,” Sen. Mike Rounds (R-S.D.), who sits on the Senate Select Committee on Intelligence, told POLITICO on Wednesday. “No more time unless they actually have a legitimate buyer in the works, and then it’ll be for an extension of not more than 90 days.”