Illustration: Sarah Grillo/Axios
The options to save TikTok rest on shaky legal ground, ultimately leaving it up to U.S. companies to decide how much risk they want to take on.
Why it matters: A flurry of vague promises from President-elect Trump and his officials to save TikTok is making it difficult to know what is legally possible for the platform as it fights for its survival.
State of play: App stores and web service providers will have to stop carrying TikTok on Jan. 19, according to the law.
- TikTok is taking a step further, planning to shut down the app itself and show a popup with information on the ban if the Supreme Court does not intervene to delay the ban.
- SCOTUS could weigh in before Sunday.
- Millions of creators and users are already moving to other apps with Chinese ties in defiance of the government's national security concerns.
- Biden officials are saying it's Trump's problem, and the incoming president is scrambling to make a plan.
Here's what could happen next:
1. Trump punts it back to Congress. The law passed with overwhelming bipartisan support and some lawmakers are pushing to delay the ban.
- On Wednesday night, Senate Democrats tried to pass a bill to extend the ban deadline but Senate Republican Tom Cotton blocked it. On Thursday, Senate Democrats held a press conference stressing how important it is to delay.
- Senate Minority Leader Chuck Schumer said on Thursday that he supports a delay: "TikTok should survive, but under new ownership."
Between the lines: Whoever saves TikTok could win a lot of political points. Republicans likely don't want to give that to Democrats on the Hill now, and prefer to wait until Trump saves the day instead.
2. Trump issues an executive order. The incoming president is reportedly considering issuing an executive order that would suspend the ban for 60 to 90 days.
- But an executive order would not override the law. TikTok would still be banned, and violating the law on the books could cost companies $850 billion.
3. Trump grants a 90-day extension. The divest-or ban law allows for a 90-day presidential extension, but only if binding legal agreements for a qualified divestiture are in place.
- No such agreements have surfaced. Trump's incoming national security adviser Mike Waltz said on Fox said Trump would negotiate a deal to keep TikTok from going dark.
- TikTok during the oral arguments noted that Trump cannot extend the deadline on Jan. 19 because he will not be president yet and the app will shut down.
- "It is possible that come January 20th, 21st, 22nd, we might be in a different world," said TikTok's lawyer Noel Francisco said, adding that's why a preliminary injunction would make sense.
Some Senate Democrats are sending a letter to President Biden on Thursday calling on him to issue a 90-day extension, Sen. Ed Markey said during a press conference.
- "There's been an offer on the table from Frank McCourt and others for a week, but there needs to be some time in order to negotiate with him or with others, right?" Markey said.
4. Trump strikes a deal during the extension period. The incoming president told SCOTUS in a filing that he alone can negotiate a deal through political means that will protect creators' First Amendment rights and address the government's national security concerns.
- But TikTok has been steadfast in its refusal to sell, calling one report of a sale to Elon Musk "pure fiction."
- And China and parent company ByteDance don't want to let go of the powerful algorithm, what creators and TikTok actually care about.
- One clue for what a deal might look like: Trump has said previously that he doesn't want a deal to result in even bigger monopolies, pouring cold water on tech giants from trying to buy the app.
5. Trump tells his administration not to enforce the law. App stores could face a $5,000 fine per user under the law, with a five-year statute of limitations.
- Justice Brett Kavanaugh pointed out during oral arguments that providers "are not going to take that risk unless they have the assurance that a presidential statement of non-enforcement is, in fact, something that can be fully relied on because the risk is too severe otherwise, right?"
The bottom line: It's going to come down to the level of risk companies like Google, Apple, and Oracle want to take.
- There is also the risk of upsetting Trump, and the president's whims are something tech companies have so far showed a willingness to bend to.
