TikTok, the wildly popular social media platform hosting over 170 million American users became unavailable in the United States shortly before 10:30 pm on Saturday, January 18, 2025, one day after the Supreme Court unanimously upheld a federal law requiring TikTok to be sold or face a nationwide ban.[1]
The Challenged Law
The federal law, the Protecting Americans from Foreign Adversary Controlled Applications Act (the “Act”),[2] has amassed significant public attention since Congress and the President passed the Act on April 24, 2024. The Act makes it unlawful for any entity to “distribute, maintain, or update” a “foreign adversary controlled application” in the United States.[3] The Act expressly defines “foreign adversary controlled applications” to include applications operated by TikTok and ByteDance, the platform’s China-based parent company which owns and develops TikTok’s proprietary algorithm.[4] However, the Act provides an exemption, allowing TikTok to operate in the U.S. if ByteDance executes a “qualified divestiture” which, by the President’s determination, would result in the TikTok platform “no longer being controlled by a foreign adversary.”[5]
By May 7, 2024, only two weeks after the Act was signed into law, TikTok, ByteDance and a group of TikTok creators challenged the constitutionality of the Act in the D.C. Circuit, arguing that it violates the First Amendment by effectively “shutting down TikTok in the United States, a popular forum for free speech and expression used by over 170 million Americans each month.”[6] On December 6, 2024, the D.C. Circuit upheld the Act, finding that the Government presented compelling national security justifications: to counter the People’s Republic of China’s (“PRC”) efforts to “collect data of and about persons in the United States” and to limit the “risk of the PRC covertly manipulating content on TikTok.”[7] On December 18, 2024, the Supreme Court granted a petition to review the D.C. Circuit’s decision and set an expedited schedule. On January 10, 2025, the Supreme Court heard oral arguments over whether the Act—as applied against TikTok, ByteDance and the group of creators—violates the First Amendment.
SCOTUS Upholds the TikTok Sale-or-Ban Law
In the per curiam decision published on January 17, 2025, the Supreme Court ruled that “as of January 19, 2025, the [Act] will make it unlawful for companies in the United States to provide services to distribute, maintain, or update the social media platform TikTok, unless U.S. operation of the platform is severed from Chinese control.”[8]
Reviewing the Act under an intermediate scrutiny standard, the justices found that the sale-or-ban provisions are “sufficiently tailored to address the Government’s interest in preventing a foreign adversary from collecting vast swaths of sensitive data about the 170 million U. S. persons who use TikTok” and that such interest is “unrelated to the suppression of free expression and [does] not burden substantially more speech than necessary.”[9] To support its decision, the Supreme Court referenced evidence including a House Report expressing concerns over the “‘breadth’ of TikTok’s data collection” and the “‘tight interlinkages’ between TikTok and the Chinese Government” since ByteDance is subject to Chinese laws requiring companies to “assist or cooperate” with the Chinese Government’s “intelligence work.”[10]
Notably, the Justices acknowledged “[there] is no doubt that, for more than 170 million Americans, TikTok offers a distinctive and expansive outlet for expression, means of engagement, and source of community. But Congress has determined that divestiture is necessary to address its well-supported national security concerns regarding TikTok’s data collection practices and relationship with a foreign adversary.”[11]
Accordingly, if ByteDance does not fully divest TikTok to resolve Congress’ national security concerns, tech companies such as Apple, Google, and other web-based providers are prohibited from offering or maintaining TikTok as of January 19, 2025. Businesses and creators in the U.S. who utilize and rely on TikTok’s algorithm and storefront would also be significantly impacted, as they would need to determine how to pivot and maintain their business without the platform.
Moreover, whether or not ByteDance eventually complies with the Act’s divestiture exemption by selling TikTok and its proprietary algorithm, this case represents Congress’ ability to effectively pressure the sale of a foreign company’s highly valuable intellectual property when their operations pose a significant threat to the national security of the United States.
While the Biden Administration stated that it would not enforce the ban, and that it would be up to the incoming Trump Administration to do so, users who signed into the app Saturday night, January 18, 2025, were greeted with a pop-up that states, in part, “Sorry TikTok isn’t available right now. A law banning TikTok has been enacted in the U.S. Unfortunately, that means you can’t use TikTok for now.” Nonetheless, the circumstances surrounding the TikTok ban have been rapidly evolving as the following morning, users appeared to have access to the platform once again and TikTok issued the following statement: “In an agreement with our service providers, TikTok is in the process of restoring service. We thank President Trump for providing the necessary clarity and assurance to our service providers that they will face no penalties providing TikTok to over 170 million Americans and allowing over 7 million small businesses to thrive. It’s a strong stand for the First Amendment and against arbitrary censorship. We will work with President Trump on a long-term solution that keeps TikTok in the United States.”
Cullen and Dykman’s Intellectual Property team continues to monitor important developments regarding the Act and its legal implications on intellectual property rights. Should you have any questions about this legal alert, please feel free to contact Ariel Ronneburger (aronneburger@cullenllp.com), Karen Levin (klevin@cullenllp.com), or Sharlene Cubelo (scubelo@cullenllp.com).
Footnotes
[1] TikTok et. al. v. Garland, Nos. 24-656 and 24-657 (U.S. Jan. 17, 2025).
[2] Pub. L. No. 118-50, div. H.
[3] Id. at §2(a)(1).
[4] Id. at §2(g)(3)(A).
[5] Id. at §2(g)(6)(A). See also Id. at §2(g)(4) (identifying the People’s Republic of China as a foreign adversary of the U.S.).
[6] Petition for Review of Constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act, TikTok et.al. v. Garland, No. 24-1113 (D.C. Cir. May 7, 2024)
[7] TikTok et. al. v. Garland, No. 24-1113 (D.C. Cir., Dec. 6, 2024) (consolidated with 24-1130 and 24-1183).
[8] TikTok et. al. v. Garland, Nos. 24-656 and 24-657 (U.S. Jan. 17, 2025).
[9] TikTok et. al. v. Garland, Nos. 24-656 and 24-657, slip op. at 13, 16 (U.S. Jan. 17, 2025).
[10] Id. at 3, 18.
[11] Id. at 19.