A panel of judges from the DC Circuit Court of Appeals has unanimously ruled that a bill potentially banning TikTok from the United States unless its Chinese parent company, ByteDance, divests ownership is constitutional. This decision intensifies the focus on ByteDance’s looming January 19th deadline to sell TikTok or face its ban from the U.S. market.
This deadline comes just one day before President-elect Donald Trump’s second inauguration, a scenario influenced by donations from ByteDance investor Jeff Yass. Despite attempting to ban TikTok during his first term, Trump shifted his stance on the campaign trail, arguing that a ban would primarily benefit another tech giant he frequently criticized: Meta.
While Trump allies reportedly anticipated efforts to delay the ban, options for intervention appear limited. The legislation allows for a 90-day extension at the president’s discretion, but only if progress is evident in divesting TikTok. Alternatively, Trump could instruct the Department of Justice (DOJ) not to enforce the law, but this approach leaves companies like Google and Apple, which control app store access, vulnerable to policy changes or enforcement by future administrations.
In its decision, the court determined that the law could withstand even the highest level of judicial scrutiny under the First Amendment. It also dismissed TikTok’s claim that the bill violated equal protection under the Fifth Amendment. Writing for the court, Judge Douglas Ginsburg emphasized the fact-specific nature of the ruling, noting the extensive efforts by both legislative and executive branches to assess national security risks linked to TikTok. He concluded that the law was narrowly tailored to address these threats.
The court cited public evidence that China could exploit TikTok for data collection or use its recommendation algorithms to influence users covertly. Although classified briefings informed lawmakers’ votes on the legislation, the judges relied solely on publicly available data to support their ruling. They also rejected TikTok’s argument that divestiture from ByteDance would be unfeasible due to potential resistance from the Chinese government. Judge Ginsburg wrote, “TikTok would have us turn the Takings Clause into a means by which a foreign adversary nation may render unconstitutional legislation designed to counter the national security threats presented by that very nation.”
Despite Trump’s initial resistance, the bill received overwhelming bipartisan support in Congress before being signed into law by President Joe Biden. Advocates argue the law is essential to protect Americans’ privacy and shield the country from foreign influence. Under Chinese law, companies headquartered in China can be compelled to share internal data for national security purposes. Although TikTok has repeatedly claimed it operates independently of ByteDance and stores U.S. data outside China, lawmakers remain concerned about potential interference by Chinese authorities in what information Americans can access or see.
During oral arguments in September, TikTok and a group of creators challenging the law contended that it would stifle free speech and limit access to information. However, the DOJ defended the legislation as a necessary and appropriately tailored response to national security risks. The judges appeared unconvinced by TikTok’s arguments, questioning whether a more restrained approach could realistically mitigate the identified risks.
TikTok retains the option to appeal the ruling further, either to the full bench of DC Circuit judges or to the U.S. Supreme Court. The company has not yet commented on the court’s decision. Proponents of the law maintain that it represents a critical step in safeguarding U.S. citizens from privacy breaches and foreign influence, while opponents continue to raise concerns about its potential implications for free speech and international business practices.