WASHINGTON − Even if President-elect Donald Trump offers assurances, companies like Apple, Google, and Oracle would be risking major financial penalties by not complying with the TikTok ban that goes into effect Sunday.
The law, which the Supreme Court upheld Friday, requires TikTok’s Chinese parent company, ByteDance, to sell TikTok’s American assets if the app wants to keep operating in the US. Congress passed the law out of concern that TikTok’s ownership structure could allow the Chinese government to get sensitive personal information on Americans and manipulate the information Americans receive.
Trump, who takes office Monday, has expressed interest in finding a solution that would keep the popular social media app available in the U.S. while addressing national security concerns.
“My decision on TikTok will be made in the not too distant future, but I must have time to review the situation. Stay tuned!” Trump posted on Truth Social Friday.
Legal experts told USA TODAY that keeping the app afloat on Sunday is a risky move, no matter what promises Trump gives.
“The companies, Apple, Google, etc., have to essentially decide – likely, in conjunction their CEOs, in conjunction with their boards – whether they want to take this risk in violating the law, despite President Trump’s assurances,” Wayne Unger, a Quinnipiac University law professor, told USA TODAY. “Because his assurances only go so far.”
Apple, Google, and Oracle didn’t immediately respond to requests for comment on whether they plan to stop offering services related to TikTok once the ban goes into effect. A spokesperson for TikTok referred USA TODAY to a video statement from TikTok CEO Shou Zi Chew, who suggested the company is hoping Trump will come to its rescue.
“I want to thank President Trump for his commitment to find a solution that keeps TikTok available in the United States,” Chew said. “Rest assured, we will do everything in our power to ensure our platform thrives.”
How the TikTok ban works
The TikTok ban works by pressuring companies to stop helping TikTok operate in the U.S. That includes companies like Apple and Google that provide access and updates to the app, as well as companies like Oracle that offer internet hosting services.
Those companies could be hit with $5,000 fines for each user they help access TikTok. For Google and Apple, that could mean a $5,000 fine for each user that downloads or updates the app through the companies’ services, and for a company like Oracle, it could mean a $5,000 for each user that simply accesses the app using its services.
Companies like Oracle “would very quickly owe a lot of money, whereas with Apple and Google, the fines would accrue more slowly,” Alan Rozenshtein, a University of Minnesota law professor, told USA TODAY.
“Tiktok would shut down by everyone else having to turn them off, essentially,” Unger told USA TODAY.
The law authorizes the U.S. attorney general to sue companies to exact the fines for each user over the previous five years – meaning an attorney general could even sue after Trump’s upcoming presidency to get fines imposed for user access during his presidency.
The law allows a president to extend the deadline by 90 days, but only if TikTok is moving towards selling off its U.S. assets and there are legally-binding agreements in place for that.
“This 90-day extension is meant to not ban Tiktok if we’re in the middle of that process, but we’re not in the middle of that process,” Rozenshtein said.
What Trump could try – and why it may not be enough
CNN and the Washington Post reported Wednesday that Trump was considering issuing an executive order to halt the ban to give him time to try to negotiate a solution. The media outlets cited anonymous sources.
However, an executive order – as opposed to a new law – wouldn’t actually have the power to halt the law, according to Rozenshtein. The sell-or-ban law was passed by Congress and signed by President Joe Biden in April.
“A presidential declaration, executive order, Truth Social, Tweet – doesn’t matter what form it takes. It would not have any legal effect,” Rozenshtein told USA TODAY. Executive orders “are just press releases with nicer stationary.”
That doesn’t mean a promise from Trump would necessarily be meaningless, from a legal perspective. If Trump promised companies he wouldn’t enforce the law and then an attorney general sued the company to impose fines for the time period covered by Trump’s promise, the company could argue in court that it relied on the promise and so shouldn’t have to pay.
However, whether that argument would work in court is uncertain, according to Rozenshtein.
“The question is, if you’re Apple, ‘Does that give you enough comfort?’ And I just have no idea what the answer is,” he said.
The Justice Department could also simply decide not to enforce the law.
Biden’s deputy attorney general, Lisa Monaco, said in a statement following the Supreme Court’s Friday decision upholding the law that implementing it and ensuring compliance after Sunday “will be a process that plays out over time.”
Trump’s attorney general nominee, Pam Bondi, declined to say whether she would enforce the ban at her confirmation hearing Wednesday.
But given the law’s five-year window for enforcement, the Justice Department’s failure to enforce the law today could be cold comfort.
Justin Hurwitz, a senior fellow at the University of Pennsylvania’s law school, told USA TODAY in an email that it’s “very unlikely” Apple and Google would take the risk of not complying given the hefty penalties that could follow.
“In reality, there is very little that President Trump can do on his own to prevent the law from going into effect,” Hurwitz said.
Would a TikTok ban be permanent?
Even if TikTok goes dark after Sunday, it could come back to life very quickly. The sell-or-ban law allows the restrictions to be lifted as soon as there is a qualified sale, and U.S. Solicitor General Elizabeth Prelogar predicted earlier this month that something like that may well happen.
“I think Congress expected we might see something like a game of chicken – ByteDance saying we can’t do it, China will never let us do it,” Prelogar said as she defended the law in arguments at the high court Jan. 10.
“But, when push comes to shove and these restrictions take effect, I think it will fundamentally change the landscape with respect to what ByteDance is willing to consider, and it might be just the jolt that Congress expected the company would need to actually move forward with the divestiture process,” she said.
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