Following months of delays, President Donald Trump has signed an executive order that’s supposed to “save” TikTok. Trump claims the deal will make the app “American-operated,” fulfilling the divest-or-ban law that threatened the China-owned app’s presence in the US. But the Trump administration didn’t reveal any information about who will own TikTok’s US operations, or how much they’ll own. And questions remain about whether the new agreement — and the steps taken to get there — is even legal.
“The TikTok saga has been the single clearest articulation, the single most vivid example of the lawlessness of this administration, of its imperial conception of itself as above the rule of law,” Alan Rozenshtein, a law professor at the University of Minnesota Law School, tells The Verge. During an interview, Rozenshtein calls into question Trump’s repeated deadline extensions that pushed back the enforcement of the TikTok ban law.
“The President was purporting to extend deadlines that he had no power to extend,” Rozenshtein says. “What in reality he was doing was just not doing his job and giving himself weird 90-day fake deadlines to do his job again.”
Since the law banning TikTok briefly went into effect in January, Trump has pushed back its enforcement four times, with the most recent deadline giving TikTok until December 16th to strike a deal with American companies. Some argue that the repeated delays violate the US Constitution’s “Take Care” clause, which states that the president “shall take Care that the Laws be faithfully executed.” Instead of enforcing the law, whether he favors it or not, Trump has spent months kicking the can down the road.
The uncertainty surrounding TikTok’s legal status has put companies like Google, Apple, and Oracle in a strange position, as it’s technically illegal for them to continue distributing TikTok on their app stores and hosting the app on their servers. “America’s biggest companies went along with this, knowing full well that this was illegal,” Rozenshtein says.
He adds that these companies are subjecting themselves to “brutal blackmail” by the Trump administration. The Department of Justice, while under Trump or a future administration, could potentially go after the companies for violating the ban, even though the agency reassured them in writing that they wouldn’t be held liable for bringing TikTok back online.
Rozenshtein doesn’t think it’s realistic for a future administration to take action against Apple, Google, or Oracle, which he thinks played a part in their decision to go along with Trump’s continued extensions. “I suspect that was the calculation, which may have been — predictably — the right calculation, but terrible for the rule of law.”
It’s still not clear which companies will take control of TikTok’s US operations, but a report from CNBC suggests Oracle, Silver Lake, and the Abu Dhabi-based MGX will control about 45 percent of TikTok in the US, while ByteDance investors get 35 percent. Neither China nor ByteDance has publicly greenlit a deal, though Trump said Chinese President Xi Jinping gave the “go-ahead” for it to proceed.
The requirements laid out in the executive order are muddy, too. As pointed out by Rozenshtein, it states that TikTok’s new owners will gain control of the app’s code, algorithms, and content moderation decisions, while also suggesting that there will be “intense monitoring of software updates, algorithms, and data flows” by US-based security partners. The “intense monitoring” doesn’t exactly make sense if ByteDance is no longer controlling TikTok’s algorithm.
Still, it will likely be a while until anything is finalized. On Thursday, a White House official said that Trump will likely push the enforcement deadline back by another 120 days to sort out paperwork and regulatory approvals, according to CNN. Until then, Trump — and the companies distributing TikTok’s app — will remain on shaky legal ground. “The national security threat is coming from inside the house these days, much more than it’s coming from China,” Rozenshtein says.
It’s been over a year since Congress declared TikTok a national security threat, and not much has come out of that. There haven’t been any notable changes to the app, other than the over $1 billion it spent to route US user data to servers based in the US (which occurred before the law even came into effect). Now, all we’re left with is a deal that might not even satisfy the divest-or-ban law, plus a whole new disregard for actually following the law.
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