Last year, the US Congress passed a law with bipartisan support which effectively banned TikTok in the US, which was then upheld unanimously by the US Supreme Court. Courtney A. Barclay looks at the background to the TikTok ban including concerns about national security and privacy. She argues that President Trump’s subsequent executive order to delay enforcement of a TikTok ban, which was passed with overwhelming bipartisan support, shows contempt for the rule of law.

Last week Google and Apple restored TikTok to their app stores. The popular social media platform known for dance challenge videos and viral trends was removed from the digital storefronts in January to comply with a federal law, signed by President Joe Biden in April 2024, that effectively banned TikTok from the US market. The tech companies restored the app after a February 13 notice from  the US Attorney General, Pamela Bondi, that the Trump administration will not enforce the federal law.

The Attorney General’s assurance followed an executive order issued by President Trump mere hours after his inauguration on January 20, 2025. The order, delaying enforcement of the TikTok ban is in direct conflict with the text of the 2024 law, which passed with overwhelming bipartisan support and became effective the day before President Trump took office. The executive order also ignored the fact that the Supreme Court upheld the law in a unanimous decision on January 17. Oddly, the order noted that the date of implementation of a law signed nine months earlier was “unfortunate timing” and instructed the Attorney General to take no action to enforce the law until President Trump could assess the implications and “negotiate a resolution.” 

Congress bans TikTok over national security concerns 

Despite TikTok’s repeated assurances about the security of its user’s data and the integrity of the published content, concerns have persisted since the app’s debut in 2017 about vulnerabilities related to national security, cybersecurity, user privacy, and content manipulation. For example, in 2019, the US Senate identified TikTok as a “potential counterintelligence threat we cannot ignore” and in 2020, during his first term in office, President Trump signed an executive order effectively banning TikTok in the United States. While TikTok successfully challenged that order as an overreach of presidential powers, the underlying concerns were confirmed in 2022 when leaked audio recordings revealed ByteDance engineers had repeatedly accessed TikTok user data. Following this revelation, federal agencies and more than a dozen states banned TikTok from government-issued devices.

Continued state responses and federal investigations culminated in the bipartisan Protecting Americans from Foreign Adversary Controlled Applications Act of 2024 (PAFACAA). Under PAFACAA, it is unlawful for any entity to “distribute, maintain, or update any application (website, desktop application, mobile application, or augmented or immersive technology application) controlled by a “foreign adversary,” which includes the People’s Republic of China. Further, PAFACAA states that the prohibitions specifically apply to any website, desktop application, mobile application, or augmented or immersive technology application that is operated by TikTok or its Chinese-owned parent company, ByteDance.

The effect of this law is that US based companies, including Apple and Google, cannot support updates or downloads of TikTok. The law authorizes the US Attorney General to investigate potential violations and enforce the law through civil penalties. For TikTok to continue operation without violating the PAFACAA prohibitions, ByteDance would need to divest TikTok of foreign control. However, ByteDance has made clear it could not sell the app, in large part because of a Chinese law that prevents the export of the algorithm on which TikTok relies. 

The Supreme Court upheld the law despite First Amendment challenges 

TikTok and ByteDance challenged the constitutionality of PAFACAA, arguing that the law restricts freedom of speech and unlawfully targets TikTok. After a federal appeals court rejected TikTok’s challenges to the law in December 2024, the Supreme Court accepted the case for review and ultimately upheld the law as constitutional In January 2025.

The Supreme Court found the law’s differential treatment of TikTok was justified because the rationale was not limiting the speech of a particular company but rather regulating any company in which foreign adversaries have significant ownership interests. The Court did recognize the serious First Amendment implications for content producers and consumers. However, the Court found that the provisions of the law are content-neutral because the law does not impose a penalty “by reason of content”, in other words, the issue is not what is posted on TikTok, but its ownership.

“TikTok Logo Statue VidCon 2022 Anaheim C” (CC BY 2.0) by Anthony Quintano

This determination triggered the application of “intermediate scrutiny” as the standard of legal review, which requires the government to show that the law advances a substantial government interest without undue burden on speech. In this case, the Court found that the government has a legitimate interest in preventing China from obtaining the vast data collected by TikTok on American users, including phone numbers, contacts, job titles, and more and that the law advances this interest by imposing a conditional ban TikTok. If the Chinese-owned parent company divested TikTok, the social platform could continue or resume operation. The Court concluded that while TikTok clearly occupies an important place in American discourse, Congress’s concerns related to national security are “well supported” and the law does not violate the First Amendment.

President Trump executive order instructed the Attorney General to refrain from enforcing the TikTok ban

Following the Supreme Court’s decision to uphold the TikTok ban, and hours before the federal law was set to go into effect, TikTok voluntarily shut down its US operations. When its 170 million US based users attempted to scroll their feeds, a message appeared in place of the expected home screen: Sorry, TikTok isn’t available right now … We are fortunate that President Trump has indicated that he will work with us on a solution … Please stay tuned!

TikTok services were quickly restored after then President-Elect Trump pledged to delay implementation of the law. Under the law’s provisions, ByteDance had 270  days to divest itself of TikTok. The law does provide for a one-time, 90-day extension to be granted at the discretion of the President who must certify to Congress that the company is executing a qualified divestiture of the application. In the 270 days since PAFACAA was signed into law, TikTok and ByteDance had notice of the requirements for continued operations. The companies pursued judicial review but provided no evidence of pursuing a divestiture that would qualify it for an extension.

On the first day of his second term, President Trump signed Executive Order 14166 “Application of Protecting Americans from Foreign Adversary Controlled Applications Act to TikTok,” which delayed enforcement of the existing law for 75 days. However, when President Trump issued this order, the ban had already been in effect for more than 24 hours. If Executive Order 14166 was intended to execute the contemplated 90-day extension, then it was issued without the required certification to Congress.

Since the executive order does not meet the standards for a Presidential extension under PAFACAA, the impact is a unilateral suspension of a duly enacted law. The 75-day reprieve for TikTok means that the app is available for American users, for now. It’s ultimate fate is unclear, with President Trump declaring that he might “sell [the app] or close it.”

Contempt for the rule of law

The consequences of Executive Order 14166 extend far beyond the debate over whether the national security concerns about TikTok are significant enough to outweigh the free speech impacts of banning the platform. President Trump’s unilateral decision to refuse to enforce a law passed with overwhelming bipartisan support and upheld by a unanimous Supreme Court, is further demonstration of his disrespect for the rule of law and for the authority of the other branches of government. 

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