On April 24, 2024, President Biden signed into law another ban on the popular video-sharing social media app, TikTok. In recent years, the US and state governments have been attempting to ban TikTok in various forms with success that is middling at best. Most of the bans have been blocked by the courts after being challenged by TikTok and its parent company, ByteDance, as well as the occasional third party plaintiff. But still, that hasn’t stopped the government from continuing to try. This newest ban was just signed into law, but that doesn’t mean it’s successful yet. As with the other bans, TikTok is challenging this one in court, as well.

What’s in this new ban?

This latest ban was bundled into a larger bill with a variety of unrelated provisions, including multiple foreign aid packages and a crackdown on fentanyl trafficking. The TikTok ban is the bill’s eighth provision out of 20, titled “Protecting Americans from Foreign Adversary Controlled Applications Act.”

The ban works by making it illegal to “distribute, maintain, or update” the app, or to provide hosting services for the app in the US. By setting up the ban this way, the government is attempting to remove support for TikTok from US companies as well as making it illegal for ByteDance to offer the app themselves. Third party app stores, such as the Apple App Store or the Google Play Store, are also prevented from offering the TikTok app on their platforms because that would be considered distribution. The same logic applies to any US-based companies that are providing web hosting services to TikTok. By structuring the ban in this way, the government is attempting to take down TikTok’s ability to be offered in the US. Even if ByteDance were to decide not to comply with the new law, US-based companies like Apple or Google are likely to comply and not allow TikTok to be offered on their digital marketplaces, which would significantly limit ByteDance’s ability to distribute TikTok in the US market even if it tried to defy the ban, which is unlikely.

The ban also targets TikTok specifically, calling it out by name in the text of the law. The ban defines apps it covers as anything operated by TikTok or ByteDance, including any subsidiaries, and any other applications deemed a significant threat to national security by the president. In order to designate an app as a threat for the purposes of the act, the president would have to get the designation approved by Congress and meet certain criteria. So far, no other app has been put through this process, so the act only covers TikTok. 

Violating the act can result in a fine of $5,000 per user on the platform while the violation occurs. With nearly 150 million users in the US, TikTok would be facing a hefty fine. But the bill does provide an option for TikTok to remain in the US without incurring a fine. ByteDance has the option to sell TikTok so that it is no longer “controlled by a foreign adversary.” The sale would have to be approved by the president to qualify. ByteDance has made it clear it is not considering selling TikTok, leaving the only option to leave the US market entirely. 

The ban effectively gives ByteDance a year to come into compliance by either selling or leaving. The ban goes into effect 270 days from its enactment, but a provision also allows for a 90 day extension to be approved by the president if a plan to come into compliance is already established but just needs more time to be completed. 

How is it different from the previous bans?

This TikTok ban might give you a feeling of deja vu, but rest assured, this is just the latest of many attempted TikTok bans. Former President Trump tried to initiate a TikTok ban in 2020 via executive order, and multiple states have tried implementing their own TikTok bans in various forms.

Federal Ban in 2020

In August 2020, a few months before the presidential election, former President Trump tried to ban TikTok in the US through an executive order. The EO cited national security concerns and censorship for its motivations. According to the EO, TikTok is “potentially allowing China to track the locations of Federal employees” and “reportedly censor[ing] content that the Chinese Communist Party deems politically sensitive” which necessitates the ban. The provided explanation is somewhat vague about these potential threats, using the clarifiers “potentially” and “reportedly” rather than citing specific sources. TikTok has denied these allegations and countered with an initiative to protect US user data. 

This ban was more strict than the bill that President Biden just signed into law. The EO provides a window of only 45 days before going into effect, a much shorter timeline than the recent 270 day window.  Additionally, rather than providing a path that allows TikTok to divest and stay active in the US market, the EO issues a blanket ban on any transactions between ByteDance or their subsidiaries and American entities. Before the EO was issued, the Trump administration did try unsuccessfully to get ByteDance to sell TikTok. There was speculation that Microsoft or Oracle might be potential buyers, but neither deal came to fruition. 

The EO cited the International Emergency Economic Powers Act, or IEEPA, as the source of authority that supposedly allowed the executive branch to enact this ban. TikTok promptly challenged the ban in federal court. By the end of September the same year, the court had struck down the EO on a preliminary injunction. The district court agreed with TikTok’s lawyers that IEEPA did not in fact authorize the president to enact such a ban. IEEPA includes a list of limitations on what the act explicitly cannot be used to regulate, including “informational materials” and “personal communications.” The district court found that these exceptions cover the content posted to TikTok, meaning that IEEPA does not grant the president the authority to ban the platform through an EO. 

This ruling does not mean that the attempted use of IEEPA powers is the sole issue with a TikTok ban. Rather, the court didn’t need to explore other avenues beyond that to know the EO had to be struck down. The new ban is a federal law rather than an EO and is subject to a different set of rules because of that difference. TikTok has already launched their defense against the current ban, arguing it’s an unconstitutional violation of the First Amendment. 

Montana Ban

Last year, Montana state legislature attempted to take matters into their own hands and passed a TikTok ban at the state level in May 2023. This ban made it illegal for TikTok to operate within the state of Montana, including allowing users in Montana the option to download the app. The law imposes a $10,000 fine for every violation each day that it continues. 

Similar to the EO in 2020, TikTok challenged the ban in court and won on a preliminary injunction last November. The federal judge agreed with TikTok’s attorneys that the ban posed a First Amendment violation, which is the same argument being used to challenge the current ban. 

Texas “Ban”

Texas also got in on the action and imposed restrictions on TikTok within the state in February 2023. Texas took a much more narrow approach than the other bans, placing a specific restriction on the app rather than a blanket statewide ban. The Texas government prohibited the download or use of TikTok on any government-issued devices across the state. The restriction was challenged in court by the Knight First Amendment Institute at Columbia University, claiming it impeded university faculty in Texas from conducting research related to TikTok. This time, the court sided with the Texas government, upholding the restriction. 

What’s next?

TikTok has already challenged the latest ban in federal court, and the Montana state legislature announced plans to appeal the blocking of their statewide ban earlier this year. It is unclear which challenge may end up in front of SCOTUS first. Other states may also decide to jump on the “TikTok ban trend” in the meantime.