The TikTok Ban Withers Away

The Supreme Court’s Jan. 17 decision upholding the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACAA) initially appeared to signal the end of TikTok's presence in America. Yet what followed was a remarkable sequence of events that has effectively nullified the law. TikTok briefly went offline on the law’s Jan. 19 effective date when Apple and Google suspended TikTok from their app stores and Oracle and Akamai, TikTok’s cloud service providers, stopped hosting the company. But later that evening, Oracle and Akamai restored TikTok’s U.S. hosting infrastructure, reportedly at the behest of the Trump campaign, which assured them they would face no legal liability. The next day, newly inaugurated President Trump issued an executive order placing a 75-day hold on PAFACAA enforcement and ordering the Justice Department to send a letter informing the companies that, if they resumed providing services to TikTok, they would not be in violation of PAFACAA and would not incur liability under the statute.

The Justice Department has apparently sent that letter (though its contents have not yet been made public) and, as of Feb. 13, Apple and Google have now returned TikTok to their app stores. So what happens now?

TikTok Might Be Back for Good

PAFACAA is unambiguous: It forbids U.S. service providers from dealing with certain “foreign adversary controlled applications,” including TikTok. Congress’s carefully crafted statutory framework provides for only one specific 90-day extension—conditioned on an actual divestment in progress—and says nothing about pauses, 75-day or otherwise, purely on the president’s discretion. On the one hand, this means that any promise of nonenforcement is unenforceable. On the other hand, it makes it easy for Trump—when the 75 days are up—to simply extend the non-enforcement window for another 75 days, or 150 days, or 750 days.

Indeed, nothing stops the president from effectively suspending enforcement indefinitely. This is a likely outcome. Despite the original national security rationale for banning TikTok (indeed, Trump’s own stated rationale when, during his first term in office, he himself tried to ban TikTok), President Trump has shown little genuine interest in forcing divestment.

At this point divestment is highly unlikely. By signalling that he will never enforce the law, he removes any impetus for ByteDance—TikTok’s parent company—to negotiate with buyers, or for the Chinese government to pressure or authorize ByteDance to sell TikTok. Indeed, China’s incentives clearly favor keeping the status quo: If Trump is happy to ignore the law, ByteDance can keep TikTok running—and keep collecting Americans’ user data and potentially manipulate the algorithmic recommendation engine—without China having to relinquish control.

Nor is there likely to be pressure from TikTok’s U.S. providers for a divestment. Now that all the major U.S. tech companies—including Apple and Google—have accepted the liability risk of servicing TikTok, they have little incentive to reverse course. They find themselves in a position reminiscent of Macbeth’s: “I am in blood / Stepp’d in so far that, should I wade no more, / Returning were as tedious as go o’er.” The companies have already taken massive theoretical liability; continuing along that path is no more dangerous than going back.

Congress, too, is unlikely to push the issue. Despite PAFACAA passing with overwhelming bipartisan consensus, Congress got cold feet as the Jan. 19 deadline loomed: Republicans (with some notable exceptions) didn’t want to cross Trump once he came out against the ban, and Democrats became hyper sensitive to complaints from their TikTok-loving constituents (Senate Minority Leader Chuck Schumer (D-N.Y.), for example, worried about the “many influencers who have built up a good network of followers”). Over time, the simplest resolution might be for Congress to quietly exempt TikTok from PAFACAA or repeal the bill outright (perhaps sneaking it into some omnibus legislation). Lawmakers could even provide retroactive liability immunity to shield these companies—much like the telecom immunity provisions in the FISA Amendments Act of 2008. 

Can Anyone Sue?

Suppose a rival app developer wants to compel the government to enforce PAFACAA, arguing that TikTok’s renewed operations harm its market share. Or perhaps a concerned group of TikTok’s users want the government to follow through with the divestment-or-ban so as to limit the danger of Chinese collection of U.S. person data. Despite the clear incompatibility between the administration's non-enforcement decision and the plain text of the statute, it will be very difficult for any lawsuit to force enforcement of PAFACAA to succeed.

First, as I’ve described previously, there are substantial standing challenges. The harms—especially if based on data surveillance—are likely to be viewed as overly speculative. More generally, plaintiffs do not have standing to insist on someone else’s prosecution. The Supreme Court recently reaffirmed this principle in United States v. Texas, rejecting a state-led effort to force federal immigration enforcement. There, the Court emphasized that an agency’s discretionary enforcement choices are not judicially reviewable absent a clear statutory right of action. Nothing in PAFACAA creates such a right of action for private parties to force the attorney general’s hand.

Even assuming some plaintiff somehow established standing, there’s the added hurdle of prosecutorial discretion. Under Heckler v. Chaney, an agency’s decision not to enforce a statute generally lies beyond the reach of the courts. And as Jack Goldsmith recently noted, the Supreme Court’s sweeping decision in Trump v. United States further cements that the president has near-total authority over the Justice Department’s enforcement decisions—an authority courts will be loath to second-guess.

Broader Effects on the Rule of Law

I have criticized Trump’s refusal to enforce PAFACAA in part because, as purely a policy matter, I remain convinced that TikTok does pose a real national security threat: The data-collection and content-manipulation powers of a Chinese-owned platform are a serious risk.

But one can disagree with the PAFACAA’s merits and still be deeply uncomfortable with the systemic effects of Trump’s seemingly indefinite non-enforcement policy—and corporate America’s willingness to accept it.

The Constitution requires that “the President shall take Care that the Laws be faithfully executed.” Yet Trump’s approach comes disturbingly close to a general suspension power. PAFACAA is just one example among many: The current administration is already undermining congressionally mandated programs and laws through budget impoundment, efforts to unilaterally eliminate agencies, and politically motivated decisions to drop prosecutions.

PAFACAA’s non-enforcement—and Congress’s willingness to go along with it—also seriously erodes the credibility of the political branch’s national security determinations. If political leaders and Congress proclaim national security threats but then fail to follow through when doing so becomes politically inconvenient, courts may be less willing to grant deference in future national security cases. Today’s cynicism about TikTok enforcement could well undercut tomorrow’s legitimate national security action.

What’s more, Oracle, Akamai, Apple, and Google are now in an immensely precarious position with respect to the Trump administration. If President Trump chooses to reinstate PAFACAA enforcement, these companies could instantly face eye-watering liability—up to $5,000 per each of TikTok’s 170 million American users. This effectively gives the president an enormous threat to hold over the heads of some of the biggest and most powerful companies in the world, granting him a fearsome extralegal tool to demand their loyalty on any number of other matters.

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The indefinite “pause” on PAFACAA may well be the law’s death knell. At this point, there is no genuine impetus for ByteDance to divest from TikTok or for Congress to impose the ban it once championed. The tech companies hosting TikTok have either resigned themselves to the liability risk or believe the president’s non-enforcement promises are ironclad. And with each day that the ban remains unenforced, the political and public will to revive it evaporates further.

Yet the true cost goes beyond the fate of one social media platform. Each time the executive branch selectively shelves a duly enacted statute and private industry cooperates, the balance of power between our political institutions shifts. If Congress sees fit to repeal PAFACAA quietly—perhaps even granting retroactive immunity—it will only reinforce the perception that the rule of law can be bent or broken at the whim of whoever occupies the White House. And the Constitution’s requirement of faithful execution becomes increasingly hollow when presidents can effectively rewrite statutes through non-enforcement.