The United States is set to ban TikTok from January 2025 over national security interests while the extent to which this application can save itself from such a ban is to be seen. Joe Biden administration passed; Protecting Americans from Foreign Adversary Controlled Applications Act aimed at banning TikTok. The app’s parent company ByteDance is pushing forward a legal battle against the U.S. government to delay the ban at least until the next president elect joins office next year. The law to ban this application has been enacted while the enforcement machinery of the statute is yet to be put in place.

Lawyers for the U.S. government argued that TikTok poses serious threats for the national security of the country.  This application is Chinese owned and run, with over 170 million users in America. The government fears that their Chinese adversaries could coerce ByteDance to disclose user data to them. Accordingly, another fear is that user data could also be recorded, collected and hence transmitted to China. Another reason why US claims TikTok to be a national security risk is that they control what their users view. This technology could hence be manipulated to instil anti-state elements amongst the American youth. National security law in America clearly prohibits collection and maintenance of the information of the people of the U.S.

ByteDance’s attorneys counter-argued that the assumption of TikTok being a national security risk is vague. Instead, they pointed that the Anti TikTok law stood in violation of the first amendment to the U.S. constitution which entails fundamental rights such as the freedom of speech. A United States federal appeals court rejected TikTok’s appeal to halt the enforcement of the bill which aims to ban TikTok.  The app owners filed this appeal to buy them time till their request to review the validity of this bill is heard by the Supreme Court. The U.S. Justice Department snubbed this request to delay the law enforcement. They remarked that such an appeal stood no ground because there was already a schedule in place which allowed for a Supreme Court review of the anti TikTok bill before it took effect.

In hindsight TikTok is also seeking a delay in enforcement of the statute till Donald Trump joins office next year as his presidency is one of the ways this application could save itself from a ban. President Trump’s tenure will begin by January 20th, 2025, which is a day after TikTok gets banned. In his election campaign, Mr Trump talked about saving TikTok from a ban. Although this is in contradiction to his first tenure as the president where he unsuccessfully tried banning this app. President Trump could ask the congress to repeal the anti TikTok bill. If not, he can also diminish the law enforcement machinery required to carry out the ban. Another way Trump presidency could save TikTok is by assuring the tech giants that they will not be penalised if they allow this application to run on their systems.

ByteDance does have quite a few other options that could serve to stop the TikTok ban. Firstly, the application could be reformed in such a way to alleviate U.S.’s national security speculations. TikTok did allow Oracle, a U.S. company to protect the data of the citizens of America. This move however, was dubbed inefficient to meet the expectations of the government and security agencies. TikTok’s U.S. subsidiary TikTok U.S. Data Security Inc. Also proved insufficient against the national security concerns, so a move to remake the app for its American users may cover the shortcomings of this subsidiary. Furthermore, to add strength to their legal arguments in the Supreme Court, attorneys for ByteDance could refer to the anti TikTok bill as a law of attainder. This as per the U.S. legal system is a law which targets a specific party without first going to trial.

It must be noted here that the appeals court in September this year rejected the notion that this bill targets ByteDance or TikTok only. It went on to clarify that the statute refers to an entire category of companies which are owned by states serving the function of U.S. adversaries and that only one amongst such companies is subjected to a necessity. This is when the threat to national security is of a grave nature, so an immediate termination of the company is viewed as necessary. This discussion, however, is open to debate and critique because ByteDance and TikTok are the only companies mentioned in the Act. TikTok and the government have been engaged in this debate over a ban, for years now.

It is highly unlikely that TikTok will be banned from the U.S. in its present form and structure. This is because the Congress has already given passage to Protecting Americans from Foreign Adversary Controlled Applications Act. The U.S. Supreme Court is now to seal the fate of this application. That too if this statute is not enforced before a Supreme Court hearing. ByteDance decision not to divest the app solidifies the chances of a TikTok ban in America. Law however keeps evolving, and if the apex court finds it too stringent, there are chances this application could continue its operations in the country but, with a continuous surveillance by the security agencies.