US President Donald Trump on Monday, his first day back in office, signed an executive order delaying the ban on TikTok in the country for 75 days. However, it is not known whether this move was legal.
The ban – signed by the Biden administration and upheld by the Supreme Court – gave ByteDance's Chinese parent company until Sunday to sell its stake in the popular social media platform or face it being banned in the US
Lawmakers on both sides of the aisle have argued that the Chinese government could use TikTok to spy on U.S. citizens.
But there is little evidence that Trump had the power to circumvent the law.
“Executive orders cannot repeal existing regulations,” said Sarah Kreps, director of Cornell University's Technology Policy Institute.
The law includes a provision that allows for a 90-day extension if progress has been made toward a sale before its effective date. The app went down in the U.S. on Saturday evening, but was restored the next day, with a message to users in the U.S. that the company was working with the Trump administration to find a solution.
Chinese social media app RedNote is in the spotlight after more than half a million TikTok users recently joined the platform in protest against a likely imminent ban of the short video app in the United States, which is set to take effect on Sunday. Technologist Jason Snyder says RedNote could “surveil or exploit users,” adding that the real danger lies in its “ability to control the narrative.”
Kreps says it's even less certain that the provision could be applied retroactively, given that the law was already in effect when Trump signed his order.
“It is unclear whether the new president has the authority to issue a 90-day extension of a law that has already entered into force,” she said.
He also doubts whether there are any grounds for delay at this stage – even without identifying a potential buyer to prove that the sale is progressing. Various media reports have wondered whether Tesla and SpaceX CEO Elon Musk will buy the platform or whether Mark Zuckerberg's Meta will be interested.
Trump who had previously opposed TikTok's presence in the US told reporters that he changed his mind after using the app himself.
Meanwhile, TikTok continued to operate normally in Canada and beyond.
First Amendment issue
The Supreme Court treated the TikTok ban as a First Amendment issue and whether the law infringes on TikTok's or its users' right to free speech, says Anupam Chander, a law professor at Georgetown University.
The court “does not assess the validity of the act. He does not assess the timetable for introducing the law. It simply states, “Did Congress have the authority to pass this law?” he told CBC News.
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Ultimately, he ruled the law constitutional, citing congressional concerns about the app's data collection.
Chander, who is an expert in the regulation of new technologies, says Trump's postponement of the ban could be challenged in court, adding, “it is not clear who would appear in US courts to bring this challenge.”
This, he says, is an example of the “danger” posed by executive orders.
“If you can say, 'Hey, newspaper, you leave and I can decide your fate in this country,' that makes the newspaper, to put it mildly, very compliant.”
This was part of the Supreme Court's argument – in a separate, broader case involving social media platforms – in July, when Florida and Texas argued that the government should limit how these platforms regulate content posted by their users.
The court issued an opinion arguing that platforms – like newspapers – should be protected from government interference in determining what to include and what to exclude in the virtual space.
U.S. Representative Frank Pallone, Democrat from New Jersey, he suggested that Trump's move was illegal, claiming the newly sworn-in president was “circumventing national security laws passed by overwhelming bipartisan majorities in Congress.”
House Speaker Mike Johnson, a Republican, did not comment on the legality of Trump's move but said he expected a complete sale.
Trump may have other plans, however, suggesting to reporters on Monday that the government could strike a deal with ByteDance to buy a 50 percent stake in TikTok. Another potential barrier is whether Beijing, which has protected TikTok in the face of threats from the United States, will embrace the idea.
Yet China's vice president met with US Vice President JD Vance and Musk on Monday after attending Trump's inauguration, where TikTok CEO Chew Shou Zi was also present.
According to Chander, if the sale goes through, the partially US-owned version of TikTok will likely be cut off from the rest of the world – much like Chinese social media platform Douyin, a sister app similar to TikTok that only operates in China and caters exclusively to the Chinese market.
These optics may not be good for the United States, Chander says.
Douyin only operates in China because it is a “very heavily censored environment,” he said. “And that's not what we usually do in the United States.”
“Canadians would stop talking to the rest of the world, and Americans would stop talking to each other. That's not a good outlook for the United States, and it's not helpful for the rest of the world.”