The TiKToK affair remains murky, not only legally, but also politically and, above all, geoeconomically. A new model of management in relations between great powers is emerging, no longer based on internationally recognized rules but only on “power”
On January 17, the United States Supreme Court rejected unanimously the constitutional appeal of TikTok against the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACAA), a rule that would block most of TikTok's operations in the US unless its Chinese parent company, ByteDance, sells.
This regulation forces ByteDance, the Chinese company that owns TikTok, to sell the app to a non-Chinese entity by January 19, 2025 (the day before Trump takes office in the White House), under penalty of being banned from operating in the United States. United.
It was precisely the decision of the Supreme Court that allowed the application of the law that has led to the blackout of TikTok in the USA on Saturday night and the withdrawal of the app from the Apple and Google stores.
As for the political side, Biden's decision to get rid of the "hot potato" by passing it on to the new President should also be highlighted, so much so that some fUS officials had declared that the outgoing administration would hand over enforcement of PAFACA, including the possible ban on TikTok, to Trump.
And this is what happened. Donald Trump has in fact played a key role in the temporary restoration of TikTok thanks to the signing of an executive order which extended the law's compliance period by 75 days, ensuring that companies involved in providing services to the Chinese social platform will not suffer any sanctions.
The extension will help the Trump administration "determine the appropriate path forward in an orderly manner, protecting national security while avoiding the sudden shutdown of a communications platform used by millions of Americans," it says in order .
For the moment, therefore, the government will not enforce the ban in the presence of this executive order.
The TiKToK affair, however, remains chaotic. And it is not only on a legal level, but also on a political and, above all, geoeconomic level.
As I had written, lDonald Trump's victory in the presidential elections could have represented a lifeline for TikTok. And it was, at least for the moment.
Trump will act to "preserve" TikTok, National Security Advisor Rep. Michael Waltz (R-Fla.) said Jan. 15.
On January 19, Trump, who was returning to the White House as the future president of the United States, had published "SALVA KICK!" on his Truth Social platform, promising to issue an executive order to “extend the period of time before the law's prohibitions take effect, so we can reach an agreement to protect our national security.” He added in a post that the United States should take 50% American ownership. This is a reversal of position by Trump, who apparently changed his mind after gaining support from young voters through TikTok during the US elections.
In fact, it was the current president who initiated the ban in 2020, towards the end of his first mandate, expressing concern that the Chinese company was sharing Americans' personal information with the Beijing government.
In any case, in addition to Trump, some important senators, including Democrats, have long been backing away from the absolute ban.
On a geoeconomic level, however, they are doing well record two facts:
The participation of Zhou Shouzi, CEO of social media giant TikTok, at President-elect Trump's inauguration;
The telephone communication between Trump and Chinese President Xi Jinping on January 17th made public by Trump himself in a tweet in which he states: “I expect we will solve many problems together, and start immediately. We discussed balancing trade, Fentanyl, TikTok and many other topics. President Xi and I will do everything we can to make the world more peaceful and secure!
In the phone call with Trump, Chinese leader Xi Jinping called for a "new starting point" in U.S.-China relations. Trump's executive order on TikTok represents one of the many signals that the new president intends to give to demonstrate his willingness to negotiate a new trade agreement with Beijing, despite the electoral campaign being based on a hard line towards the country, the main geopolitical rival of the United States.
Trump also refrained from imposing tariffs on Chinese products on Monday. During the election process, Trump threatened tariffs of more than 60% on Chinese imports into the United States, and Beijing is preparing for fiercer economic competition with the United States.
The issues on the table, therefore, are many, heterogeneous and touch on issues that are not purely legal or political, but broader.
What does PAFACAA require?
PAFACAA, passed last year with overwhelming bipartisan support, creates a divestment or ban framework for certain foreign-controlled applications. The law specifically targets TikTok and its parent company, ByteDance, but also establishes a broader mechanism to regulate similar applications.
The basic mechanism of the law is simple, writes Alan Rozenshtein, professor of law at the University of Minnesota and editor-in-chief of Lawfare: “Unless ByteDance divests TikTok through a 'qualified divestiture' that eliminates control of a foreign adversary, U.S. companies must cease providing the app's critical infrastructure, including app store access and cloud services hosting. Notably, the PAFACAA regulates these American service providers rather than TikTok or its users directly. A qualified divestiture requires a presidential certification through an interagency process, demonstrating that (a) the app is no longer controlled by a foreign adversary and (b) there will be no operational relationship between U.S. operations and the controlled entities from abroad, in particular regarding content recommendation algorithms and data sharing”.
When does the ban come into effect?
The law went into effect Sunday, January 19, the day before President-elect Donald Trump was inaugurated. This date derives from the PAFACAA implementation provision, which sets the effective date at 270 days after promulgation (April 24, 2024). “While the law allows for a 90-day presidential extension, this option was designed specifically for scenarios where a divestment transaction is actively underway but requires additional time to finalize. Such an extension requires specific certifications to Congress: (a) the existence of a viable divestment path, (b) evidence of significant progress toward divestment, and (c) the presence of binding legal agreements. Given that no divestment appears to be underway, an extension of this type would probably be invalid from a legal point of view,” he specifies Alan Rozenshtein.
Who is subject to the ban?
The PAFACAA's enforcement mechanism primarily targets two categories of entities: companies that distribute TikTok through application marketplaces, primarily Apple's iOS App Store and Google's Android Play Store; and companies that provide Internet hosting services, including cloud hosting providers such as Oracle and potentially (the statute uses the word “may”) domain name system (DNS) providers that translate the TikTok URL into addresses IP. The Attorney General has the power to enforce the law through financial penalties (fines of up to $5,000 for each user who accesses TikTok) and injunctive relief.
What happened?
Rozenshtein, who had been closely following TikTok's existential legal battle, had previously stated on Minnesota Public Radio that the effect of the “ban” is that “TikTok apps will be pulled from app stores.”
“Assuming US companies comply with their PAFACAA obligations (which they likely will), we can expect several immediate effects:
App stores will remove TikTok, although they won't delete it from phones that already have it installed.
US-based servers and content delivery networks will shut down TikTok's domestic infrastructure.
Users attempting to access TikTok through their web browsers may encounter error messages due to server shutdowns and possible DNS deregistration.”
“TikTok already operates numerous servers outside of the United States and may move operations to this foreign infrastructure. However, the functionality of the app will depend on its technical architecture. If it is configured to connect to US servers first for operations like CDN selection or location verification, users will likely be faced with error messages once these servers go offline. However, if the application can seamlessly redirect to international servers, some functionality may be retained, albeit with reduced performance due to increased latency. Even if some users maintain access through foreign servers, their experience will constantly worsen. Without the ability to receive updates through the American app stores, the application will become a slowly decaying time capsule: new features will never arrive, bugs will not be fixed and the application will become increasingly unstable,” he said. added Rozenshtein su LawFare.
“It is important to note that while PAFACAA does not require TikTok to cease its operations, the company is preparing to completely shut down its U.S. services on Sunday [January 19]. This is a strategic choice, rather than a legal necessity, which probably aims to make people understand the impact of the ban and to put pressure on Congress and the next Trump administration to find an alternative solution", the jurist announced before Trump's executive order.
In fact, TikTok went dark in the US on the evening of January 18, right before the federal ban went into effect on January 19. The move affected about 170 million users, nearly half of all Americans.
Confirmation regarding the Chinese company's probable choice to "close" the app also came from two sources familiar with the company's activities who had declared to The Information that TikTok planned to disable its app for US users on Sunday [January 19].
Following the blackout, U.S. TikTok users were logged out and displayed a message that read: “A law has been enacted in the United States banning TikTok. Unfortunately, this means you can't use TikTok for now. We are fortunate that President Trump has indicated that he will work with us on a solution to restore TikTok once he takes office. Please stay tuned!”
The app also disappeared from the Apple and Google app stores before the ban on January 18, along with other ByteDance-owned apps, which shocked users, who didn't realize other related apps would be affected.
On the afternoon of January 19, however, TikTok restored its services in the United States, less than a day after it was shut down, following Trump's promise to restore the app.
Trump then decided to temporarily restore TikTok thanks to his signature executive order which extended the law's compliance period by an additional 75 days.
What Trump can do
According to the Washington Post , Trump is eager to be seen as saving TikTok, a platform on which he believes he is wildly popular and which may even have helped him get elected.
According to various sources, the new administration aimed to showcase efforts to "save TikTok" especially on the day of Trump's inauguration. The telephone communication between Trump and Xi Jinping on Tik Tok can also be read in these terms.
Last December, TikTok chief Shou Zi Chew visited Trump at Mar-a-Lago to discuss the app's future. After the meeting, Trump shared his affection for the app, saying its content has garnered nearly 4 billion views.
This is probably also why Shou Zi Chew was invited to sit among the likes of Mark Zuckerberg and Elon Musk in a position of honor at the podium during Trump's inauguration, "where former presidents, family members and other important guests", reported the editorial staff of the New York Times .
However, for the legal experts, Trump's options for helping TikTok would still be limited. Per Rozenshtein, Trump “may seek to facilitate a divestiture, but there is no indication that China will allow ByteDance to sell TikTok, with or without the algorithm, the sale of which is expressly restricted by China's export control laws. This is not surprising. TikTok's primary value to the Chinese government lies precisely in the national security threats that motivated PAFACAA: the ability to collect sensitive data on Americans and influence the content they see through ByteDance's control (and therefore, ultimately, of Beijing). A sale would eliminate these strategic advantages."
Washington to the rescue
Trump could also ask Congress to amend or repeal the PAFACAA.
Tuesday January 14, Senators Edward J. Markey (D-Mass.), Ron Wyden (D-Ore.), Cory Booker (DN.J.), and Representative Ro Khanna (CA-17) they announced their intention to introduce the Extended the TikTok Deadline Act, which aims to extend ByteDance's sale deadline by 270 days.
While Markey expressed concern about TikTok's impact on the privacy and mental health of young Americans, he warned that a ban would disrupt a unique cultural community and silence many voices.
Senate Majority Leader Chuck Schumer also announced on January 16 published a surprising message on Bluesky: “It is clear that more time is needed to find an American buyer for TikTok. We will continue to work to keep TikTok alive, protect content creators' livelihoods, protect against CCP surveillance, and protect security nationally. I will work with the Trump government to find a solution."
Direct intervention by Trump
“This unexpected change by a prominent Democrat at least suggests the possibility of legislative action,” Rozenshtein argues. According to him, Trump would have four main options for executive action (although legal experts question whether an executive order could effectively overturn a law passed with bipartisan support and upheld by the Supreme Court):
Activate the 90-day extension provided by PAFACAA which "would not be legally valid since no divestment process is underway". [We saw that Trump signed an executive order which extended the law's compliance period by 75 days].
Instruct his attorney general not to enforce the law against Apple, Google, Oracle and other affected companies. [In fact, this was decided by Trump in his executive order]
“Use the definition of 'qualified divestiture' - defined as a divestiture or similar transaction that ... the President determines' meets the ownership and control requirements - to announce that ByteDance has divested itself from TikTok even if no significant change. If ByteDance cooperates by making superficial changes to its ownership structure, this could provide Trump with sufficient legal cover to declare the divestiture occurred.”
“Declaring, under an unspecified (and almost certainly legally dubious) theory of Article II, that the PAFACAA unconstitutionally interferes with his foreign affairs powers, a position hinted at in Trump's brief to the Court Supreme."
Rozenshtein, the law professor, told WaPo that executive orders, however, "are not magic documents." "They're just press releases with nicer letterhead. TikTok will still be banned, and it will still be illegal for Apple and Google to do business with them. But it will make the president's intention not to enforce the law much more official," he said.
For Rozenshtein, therefore, the fundamental problem is that Trump's possible executive orders would not be “legally compelling and the sophisticated legal teams at Apple, Google and Oracle will recognize this. Any of these enforcement actions would leave these companies exposed to significant legal and financial risks, with potential fines of $5,000 for TikTok's 170 million American users creating enormous financial exposure. While the Trump administration could offer various forms of assurances, these companies would still face substantial uncertainty over future enforcement. In light of these risks, companies' legal advisors would be unlikely to advise their CEOs to continue doing business with TikTok in either of these scenarios, although companies' final decision could depend on their risk appetite and whether they see a sufficient value in currying Trump's favor, an especially important consideration given Silicon Valley's recent rightward shift and the growing willingness of tech leaders to align with Trump and his allies."
How much it costs and who could buy TikTok USA
In his message of January 19th, Trump also proposed that the United States enter into a 50% joint venture in TikTok USA, so that “we will keep it in good hands and allow it to grow. Without US approval, Tik Tok does not exist. With our approval, it is worth hundreds of billions of dollars, perhaps trillions”.
Trump concluded his message thus: “Therefore, my initial idea is for a joint venture between the current owners and/or the new owners, where the US gets 50% ownership in a joint venture created between the US and whichever buyer we choose”.
TikTok USA, which has 170 million users, was valued at between 40 and 50 billion dollars and, following the American ban, several companies and people had proposed to purchase it. The latest was Perplexity AI, distributor of the AI search service of the same name on the web, which offered a merger with TikTok's US subsidiary, also supported by Jeff Bezos.
It had been upon purchase approached also the name of Elon Musk, but the indiscretion was directly denied by ByteDance.
Frank McCourt, the billionaire investor and entrepreneur, best known for being the former owner of the Los Angeles Dodgers baseball team, also proposed.
And the potential buyers also include the former Treasury Secretary, Steve Mnuchin, who in March last year declared that he wanted to put together a group to acquire TikTok; the video sharing platform Rumble; and also the well-known YouTuber MrBeast.
The location of ByteDance e del PCC
ByteDance's reluctance to sell is due to lack of authorization from its final owner , the Chinese government, writes the China expert Shannon Brandao. “Beijing's refusal to allow a seemingly private trading company to sell to the highest bidder also demonstrates how much control the CCP really has over TikTok.”
On the other hand, the transfer falls within the scope of China's national security law that legitimizes the CCP's veto power.
When asked about Trump's vision for TikTok's future, China's Foreign Ministry said that "business operations and acquisitions" should be "decided by companies" and in line with Chinese law.
The United States should "seriously listen to the voice of reason" and "provide an open, fair, just and non-discriminatory business environment" for companies from all countries, spokesman Guo Jiakun said on Tuesday.
Reaction in China
On Chinese social media, where TikTok's fate appeared as one of many US attempts to undermine Beijing's technical might, Trump's suggestions were met with scorn, writes the CNN.
Tens of millions of users on social media platform Weibo poured in hashtags related to the potential 50-50 ownership, with many decrying the US government's "robbery".
“Then Apple and Tesla should also sell 50% of their shares to Chinese companies,” read one comment that received thousands of “likes.”
“Then we need 50% control of Nvidia!” another commenter said, referring to the US chipmaker.
“China will not let ByteDance kneel,” read another comment, referring to TikTok's parent company. “The robbery does not change its nature just because it changes from 100% to 50%,” the comment added.
Media giant ByteDance doesn't operate TikTok in China, but its sister app Douyin is popular domestically.
Meanwhile, an editorial in the state-run nationalist tabloid Global Times on Tuesday examined the U.S.'s handling of the ban and concluded that "the trap that some Americans set for TikTok has trapped them instead."
The “red migration”
Even stranger than the fact that American lawmakers and the incoming president went out of their way to save a Chinese-owned social media app, considered a threat to national security by a bipartisan consensus, was the migration of thousands of TikTok's American Key Opinion Leaders (KOLs) and their followers to another Chinese-owned application called "Little Red Book" or RedNote, so far only known in China.
According to CNN, however, within hours self-styled "TikTok refugees" from America were already frustrated with the platform's censorship policies, which are much stricter than TikTok's.
CNN said new subscribers would be "educated" by local users about the growing list of politically sensitive terms and punishments for non-compliance, which "could lead to fines, suspensions or even termination."
On January 14, a report from Chinese media outlet PConline highlighted the risk for RedNote, whose staff members were advised "not to discuss, not promote or share" the information on their new user base in the United States. “The recent influx of users has become a looming threat to RedNote. In fact, for RedNote, which has unexpectedly gained this traffic, the associated risks greatly outweigh the potential benefits.” “This wave of [American] traffic has become the sword of Damocles hanging over RedNote's head,” the report said.
The app, founded in 2013, began as a female-focused online space. It has similar features to Instagram and focuses on shopping, beauty and fitness. Although its name refers to Mao's book, the app does not appear to be driven by politics but by economic consumption. It should also be mentioned that in response to the increase in non-Chinese speaking users, RedNote is urgently hiring English-speaking content moderators to manage posts and develop English-to-Chinese translation tools.
Thanks to the new international attention, the platform has also reached the top of Apple's US App Store.
In any case, while some users may temporarily migrate to this alternative, platforms like YouTube Shorts and Instagram Reels are likely to capture the majority of TikTok's audience, thanks to their massive existing user bases, established networks of content creators and sophisticated recommendation algorithms that can provide TikTok-like experiences.
Is TiKTok the wedge to force a new trade deal on China?
In the phone call with Trump, Chinese leader Xi Jinping called for a “new starting point” in U.S.-China relations and emphasized their “broad common interests.” Xi also was sent by Chinese Vice President Han Zheng at Trump's inauguration, the highest-ranking official Beijing has ever sent to the inauguration of an American president.
Trump's executive order on TikTok represents one of the many signals that the new president intends to give to demonstrate his willingness to negotiate with Beijing, despite the electoral campaign being based on a hard line towards the country, the main geopolitical rival of the United States United.
Trump also refrained from imposing tariffs on Chinese products on Monday. During the election process, Trump threatened tariffs of more than 60% on Chinese imports into the United States, and Beijing is preparing for fiercer economic competition with the United States.
When asked about those tariffs on Monday, Trump said the tariffs he imposed as president the first time around were still in place. He gave no timeline for when he might impose more tariffs, although he said tariffs on Mexican and Canadian products could take effect on Feb. 1.
But Trump, CNN adds, has also hinted that the tariffs could be linked to TikTok's fate, raising questions about what kind of tough bargaining the president may have in mind in the months ahead.
In a speech in the Oval Office on Monday, Trump speculated about imposing tariffs of up to 100% on China if Beijing did not approve a potential future deal.
“If we wanted to do a deal with TikTok and it was a good deal and China didn't approve it… I think they would ultimately approve it because we would impose tariffs on China, maybe,” he said, suggesting that this was not the only approach that could have been adopted.
Sun Chenghao, a research associate at the Center for Strategic and Security Studies at Tsinghua University, has declared to ManKeDao that Trump's attitude reflects the contradictions and power games at multiple levels inside and outside the United States.
“On the one hand, the TikTok incident reflects the United States' tendency towards pan-security, it is an expanded and new version of the 'China threat theory', in the political instrument whether the abuse of political legitimacy, obviously still controversial. On the other hand, TikTok, as an APP with huge commercial volume and influence on public opinion, is very popular among US youth, and the government's administrative ban will obviously meet social resistance, thus limiting politicians in terms of votes and public opinion".
This tension between "politics and public opinion" can be said to be the main reason for the repeated bans, the Chinese researcher added.
Sun Chenghao also pointed out that the hunt for TikTok is also influenced by partisan games and power transition. During the “Trump 1.0” period, the TikTok ban was one of the symbols of a tough policy towards China. The Biden administration's "little wall" continued to compete with Chinese science and technology. Now Trump's signing of the “grace period” order is a kind of compromise, which does not allow him to easily give up the hard-line position, but also reserves some space for policy adjustment.
“However, the US policy of engaging in unilateral blockades will not only fail to restrain Chinese companies, but on the contrary, will exacerbate the fragmentation of the global digital economy, weakening US national soft power and rule-making ability,” said Sun Chenghao.
Zhang Xin, director of the Digital Economy and Legal Innovation Research Center of the University of International Business and Economics, believes that, although the Trump administration has granted a "grace period", from the point of view of the legal effects "the initiative is difficult to substantially contrast with the 'sell or ban' law, because this was voted by both chambers, signed by the president and subjected to judicial review by the Supreme Court. As for Trump's proposed joint venture model, personalized recommendation algorithms have been included in China's export technology catalog, the export of relevant technology is subject to government approval, and the algorithm system and other segments businesses are completely separate; therefore, there are also clear challenges.”
Zhang Xin also said that in the medium to long term, TikTok's prospects in the United States may have several possibilities:
“First, it is hoped that the Trump administration will be overturned through congressional legislation, but this move is difficult to implement and deviates from the White House's current strategic direction. The second is to completely withdraw from the US market, an option that would trigger discontent among the American youth population and small and medium-sized businesses, contradicting Trump's statements during the election campaign. Also, there is the idea of Trump’s “compliance divestment” on social media, but it is difficult to implement.”
People close to ByteDance have declared to Rogue Island that so far the company has not reached any agreement with the US side and ByteDance still has 100% control of TikTok.
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