What happens next if TikTok gets banned? -Jennifer Huddleston

Both the D.C. Circuit and the Supreme Court rejected a request for a preliminary injunction that would have prevented the law from taking effect pending further appeal of the case. However, the Supreme Court agreed to hear arguments on Jan. 10 on whether the law would violate the First Amendment rights of its users and owner. This means that the case will be heard by the Supreme Court just nine days before the end of the divestment deadline.

If the law stands, it would force the sale of TikTok by January 19 or the app would be banned in the US. Users of the video-sharing app may be worried about losing their favorite platform on which they have built a community or, in the case of the legions of TikTok influencers, a business. This comes at a time when a new Congress and presidential administration will take office. So what happens now?

Proponents of the law often point out that the app will only be banned if TikTok does not separate from its China-affiliated parent company ByteDance. However, divestment is not as easy as proponents make it sound. The first question is what type of product the parent company is selling. Is it the algorithm? The branding? The underlying data?

Depending on what the Supreme Court does, the Biden administration could seek a 90-day extension provided for in the law, which would allow more time for possible divestitures.

In addition to the divestiture deadline, the law grants the U.S. government significant discretion and potential influence over any proposed sale, as it must agree that the transaction addresses underlying foreign influence concerns. Due to the value and size of the transaction, the divestiture could also be subject to further review by the Federal Trade Commission or the Justice Department, as was the case with recent technology acquisitions under both the Biden administration and the previous Trump administration.

Could the new government change course? After all, President-elect Trump recently promised to “save TikTok,” but the wording of the law, which specifically names the company, limits his options. The president could choose not to apply the law to other potential companies, but he could not exempt TikTok itself.

A new government could authorize “qualified sales” or even informally extend the deadline by declining to enforce penalties under the ban if a sale does not occur by Jan. 19 or an extended deadline. However, such non-enforcement would neither resolve the underlying issues nor provide the necessary security for TikTok, its users, or the app stores and other distributors that could potentially be penalized. However, if the courts uphold the law as constitutional, Congress would have to formally repeal the underlying law to truly stop the ban if a divestment fails.

Assuming divestment was impossible, what would a “ban” look like? The underlying law prohibits “distribution, maintenance or updating” of the app. This means that app stores – such as those operated by Apple and Google in the US – and internet providers would have to remove the app from distribution or block access to downloading and routine updates. This poses a worrying potential for further government intervention into which apps can and cannot be allowed into American marketplaces, as well as additional regulation of both the app store and the social media market.

Users who already have the app can continue to use it for now. However, you could no longer receive updates, so the functionality of the app would gradually be limited – errors could not be fixed or important security updates could be made. Additionally, these restrictions would reduce the potential audience of new users and make it difficult, if not impossible, for existing users to publish or share videos.

Users in countries where popular apps are geo-blocked have been using virtual private networks (VPNs) to get around the ban, and it’s possible some TikTok users are doing the same. A VPN that provides an encrypted internet connection and hides a user’s IP address would likely allow users to bypass the ban and access the app and its updates by claiming to be somewhere else where the app is not banned. When Utah in the US imposed age restrictions on accessing adult content websites, searches for VPNs among its residents skyrocketed.

In the short term, TikTok’s American users can continue to use the app; However, access in the following months may be subject to a deadline. Regardless of the outcome for TikTok, the power the law gives the executive branch to potentially intervene in the app market will have significant societal and constitutional implications, even after the latest TikTok dance goes viral.