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What, exactly, would a TikTok ban look like? It's hard to know for sure.

Image: TikTok/David Pierce

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Politics

How Trump’s TikTok ban might actually work — or not

The administration has been trying to get rid of TikTok for months, and now the president said he's going to make it happen. The question is, how?

President Trump told reporters on Air Force One Friday night that "as far as TikTok is concerned, we're banning them from the United States." Trump also dismissed the idea of letting a U.S. company buy TikTok's U.S. business, as Microsoft is interested in doing. (Microsoft didn't respond to a request for comment.)

What Trump wants, according to a source familiar with the matter, is to ensure that TikTok U.S. becomes an entirely American-owned business. TikTok has talked with other companies about such an acquisition — conversations started around the time of Mike Pompeo's comments earlier this month that the government was "looking at" a ban — but discussions with Microsoft have advance farthest. Trump, this person said, would see a 100% American-owned TikTok as a win for his administration.

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On Saturday, Reuters reported that ByteDance is willing to make that happen. It had reportedly hoped to keep a minority stake in TikTok's U.S. business, but is now prepared to divest it completely.

Trump's move is not exactly surprising: It comes after months of posturing and rhetoric, with the Trump administration claiming Huawei, TikTok and other China-owned companies present a national security threat to the United States. TikTok, meanwhile, has desperately tried to outrun that idea. It hired an American CEO, promised to hire 10,000 people in the country, launched the TikTok Transparency Center in Los Angeles, and even offered a thorough explanation of its algorithm. "TikTok has become the latest target, but we are not the enemy," wrote that American CEO, Kevin Mayer, in a blog post this week.

After the news broke on Friday, a TikTok spokesperson said in a statement that "these are the facts: 100 million Americans come to TikTok for entertainment and connection, especially during the pandemic. We've hired nearly 1,000 people to our U.S. team this year alone, and are proud to be hiring another 10,000 employees into great paying jobs across the U.S. Our $1 billion creator fund supports U.S. creators who are building livelihoods from our platform. TikTok U.S. user data is stored in the U.S., with strict controls on employee access. TikTok's biggest investors come from the U.S. We are committed to protecting our users' privacy and safety as we continue working to bring joy to families and meaningful careers to those who create on our platform."

The open question is, can Trump actually do this? There's really no model for an out-and-out ban on an app in the U.S. The closest legal precedent may come from 1995, when the U.S. government attempted to regulate encryption software. The government said encryption was a "munition" and that Daniel Bernstein would need a license to talk about or share his encryption algorithm. Bernstein argued that was an illegal restriction on his speech. In the case, Bernstein v. U.S. Department of Justice, the court ultimately concluded that "the Source Code was speech protected by the First Amendment."

That case was argued for Bernstein by a legal team from the EFF, and the organization believes strongly that it applies now. "There is absolutely no way the United States is going to ban TikTok because of the First Amendment," Eva Galperin, the EFF's director of cybersecurity, told me a few weeks ago. "Code is speech. TikTok is code."

That's not to say Trump doesn't have any moves, though. His case for getting rid of TikTok likely starts with CFIUS, the Committee on Foreign Investment in the United States. The group is made up of a number of government bodies but is run by the Treasury Department. It's the committee that forced Beijing Kunlun Tech to sell Grindr in 2019, and it was widely reported that CFIUS' concerns had to do with the personal data Grindr could have, especially on members of the intelligence community or the military.

CFIUS has reportedly been looking into ByteDance's $1 billion acquisition of Musical.ly, a China-based company with a U.S-based app that was rolled into TikTok and helped kick off the app's worldwide explosion, since last fall. The move was sparked by concerns that TikTok was suppressing certain kinds of political content, and a number of government officials called for a review. That same focus on personal data could also give CFIUS a reason to nix the acquisition.

Typically, CFIUS is not allowed to disclose these investigations, but Treasury Secretary Steven Mnuchin said this week that TikTok was indeed under investigation. "TikTok is under CFIUS review and we'll be making a recommendation to the president on it this week," he said. "So we have lots of alternatives."

The timing checks out. Here's a key bit from CFIUS's most recent report to Congress: "If CFIUS determines that the transaction poses unresolved national security concerns, it will refer the transaction to the president unless the parties choose to abandon the transaction. The president may suspend or prohibit the transaction, including by requiring divestment." The president has 15 days from a CFIUS referral to make a decision, and is required to announce it publicly.

That investigation may give Trump cover to, if not ban TikTok outright, at least push for the unwinding of ByteDance's acquisition of Musical.ly. That would, at the very least, massively complicate the company's work going forward. Trump also said he could use an executive order or invoke the International Emergency Powers Act to ban the app, saying "well, I have that authority." Whether he actually does is hard to know, because this would be an unprecedented move.

Then there's the question of what "banning" TikTok might actually look like. Trump could pressure Google and Apple to remove the apps from their app stores, though that wouldn't affect the millions of users who already have TikTok downloaded. TikTok has long said it holds user data both in the U.S. and Singapore, which would make it hard for the U.S. government to unilaterally shut down its operations. Countries like China and India can kick out an app just by blocking its network traffic, but that'd be even harder for the administration to justify.

Whatever happens, the race to corral TikTok users is on. Instagram's Reels, a rough copy of TikTok, has been slowly launching around the world, while Triller has become a favorite landing place for creators. Whether Microsoft buys the app, it gets kicked out of the country altogether, or this all turns out to just be more bluster, the TikTok War is far from over.

Update: This story was updated Aug. 1 to add information about ByteDance's willingness to sell 100% of TikTok U.S.

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