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TikTok’s future in the United States is as uncertain as ever — and its political fate may owe to Donald Trump, the man who originally tried to ban it years ago.

Earlier this year, Congress passed a law banning TikTok in the United States unless its parent company ByteDance divests itself of the app – despite lawmakers like Senator Richard Blumenthal insisting otherwise not a ban, but a “forced transfer of ownership”. This was the culmination of a years-long effort initiated by Donald Trump in 2020, when he unsuccessfully tried to ban the app via executive order until a federal judge stopped him, saying he was likely overstepping his legal authority.

So why the hate? While TikTok has become a wildly popular social platform and cultural tour de force in the United States, its Chinese origins have made it a political lightning rod on both sides of the political spectrum. Anti-TikTok crusaders in the government have claimed without evidence that TikTok’s presence on American cellphones poses an urgent national security threat, citing concerns about data security and propaganda violating the free speech rights of the 170 million Americans who use the app to communicate , predominate.

TikTok sued the U.S. government in May, arguing that the law violates, among other things, the First Amendment, which guarantees free speech, and constitutes an illegal “Bill of Attainder” that penalizes a party without trial and due process. But on December 6, three federal appeals court judges in D.C. upheld the law, saying the law was “carefully crafted to address only control by a foreign adversary” and did not violate the First Amendment. Attorney General Merrick Garland celebrated the decision, calling it “an important step in preventing the Chinese government from weaponizing TikTok to collect sensitive information about millions of Americans, secretly manipulating the content delivered to American audiences, and safeguarding our national security.” undermine.”

On December 9, TikTok filed a preliminary injunction that would temporarily block the ban from taking effect until the Supreme Court can consider its constitutionality. Since the law is set to take effect on January 19, a day before Trump’s inauguration, it would also give the new president time to take action to save TikTok – something he has suggested.

Let’s be clear: a ban on TikTok would be an affront to the rich tradition and legal protections of free speech in the United States. Never in the history of this country has the U.S. government blocked access to such an important and well-worn medium of speech, including political speech. If the ban goes into effect, it would impinge on the free speech rights of hundreds of millions of Americans after one of the most important elections in history. While TikTok’s Chinese origins may be troubling, the Supreme Court has long enshrined our constitutional right to receive foreign media – even if it involves propaganda from foreign adversaries.

ByteDance’s ability to collect Americans’ lip-sync video viewing habits or their basic demographic information, or even to distribute or moderate content in an unfavorable manner, does not negate the right we – as Americans – have to that information. Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, put it succinctly when reacting to the appeals court’s decision: “This is a deeply misguided ruling that interprets important First Amendment precedents too narrowly and the government “Gives broad powers to restrict Americans’ access to information, ideas and media from abroad.”

Donald Trump once launched a ban on TikTok, but has since failed on the issue because one of his biggest donors, Jeffrey Yass, is a major investor in the app. (No one has accused Trump of being a man of principle.) Trump said in a September post on Truth Social that he would “save TikTok” if elected — although this may have been a late-game appeal to young voters .

But how would that actually work? Former Justice Department national security adviser Alan Rozenshtein told the Washington Post that Trump had three main options: 1) he could convince Congress to repeal the law; 2) He could instruct his new attorney general not to enforce this; and 3) It could declare that ByteDance complies with legal requirements by completing a “qualified divestiture.”

Option #2 seems the easiest: The technical prospects for actually banning TikTok are unclear – the mechanism appears to be to penalize mobile app marketplaces like Apple’s App Store and Google Play Store if they do Allow downloading of the app, or even allow cloud companies to host TikTok’s data. The app will not disappear from users’ phones, but it may degrade its performance over time and become laggy if users are unable to download updates. (Yes, ironically, this makes the app’s security significantly worse, but don’t tell Congress that.)

Trump’s Cabinet is openly hostile to TikTok. Brendan Carr, Trump’s nominee to chair the Federal Communications Commission, has supported a total ban on the app, while Sen. Marco Rubio, Trump’s nominee for secretary of state, called the ban a “victory for America” ​​last year. But Donald Trump’s loyalty is known to be reserved for Trump’s own whims – and not the ideological preferences of his advisers.

In this usual Trump flip-flop nonsense, there might be hope that Trump will do the right thing, even if it’s for the wrong reason. With a wave of his hand, Trump can undo the damage he did by creating this mess years ago and become an unlikely savior of free speech in America. And I never would have thought that write.

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