App stores unconvinced by Trump's TikTok ban pause, which may itself be on shaky legal ground
El Reg asked a lawyer to explain WTH is going on
Analysis President Trump's executive order stalling the enforcement of the TikTok ban in the United States has created legal uncertainty for companies hosting or distributing the app. To further confuse the matter, it's not even clear that Trump's decree is within his power to issue or enforce.
The executive order, which Trump issued Monday, puts a 75-day pause on PFACAA – the law requiring China's ByteDance to sell TikTok to a US government-approved buyer or have the app banned in America. This delay is supposed to give Team Trump "an opportunity to determine the appropriate course forward.
PFACAA, or Protecting Americans from the Foreign Adversary Controlled Applications Act to give its full name, was passed by Congress in 2024 after Trump himself started the ball rolling on a TikTok ban in 2020, calling for the app to be blocked in the US on national security grounds.
Today, it turns out TikTok is quite popular among younger voters, and the White House wants to work out a deal that will keep the app of twerking teens available in the US albeit without the possibility of Beijing using the software to snoop on millions – namely by putting the application in the hands of a buyer approved by Uncle Sam and the Chinese government.
"I intend to consult with my advisors, including the heads of relevant departments and agencies on the national security concerns posed by TikTok, and to pursue a resolution that protects national security while saving a platform used by 170 million Americans," Trump wrote in his order.
Penalties for noncompliance with PFACAA can be steep. According to the act, entities providing services to distribute, maintain, or update TikTok and other "foreign adversary controlled applications" covered by PFACAA face fines as high as $5,000 per the number of users within the US "determined to have accessed, maintained, or updated a foreign adversary controlled application as a result of such violation."
With around 170 million TikTok users in the US, per Trump's EO, fines for any particular company hosting or providing access to the app or website could easily run into the billions of dollars were they to face enforcement.
"None of them want to take the risk of getting sued," Hall Estill lawyer J. Kirk McGill told The Register in a phone interview today. "I doubt we'll see a change in the immediate future of them violating the law, Trump's order notwithstanding."
McGill said that, while ISPs, CDNs, and DNS providers could face some risk for allowing the web version of TikTok to continue reaching users via their services, that risk is very attenuated and most of the fine potential falls on those distributing the apps.
As of writing, TikTok is still missing from the Apple App Store, Google Play, the Amazon App Store, and the Microsoft Store, all of whom moved quickly to pull the software on Sunday, when the PFACAA kicked in and the day before Trump was inaugurated.
For a brief period on Saturday, TikTok made itself stop working in the US out of protest, then returned thanking Trump for his support in getting the app legal again in America – that support being Trump changing his mind about banning the thing, which he suggested in the first place.
As far as we can tell, TikTok still works in the United States, for now, by its own choice, on the assumption enforcement will be held off for a while, though it isn't available from mobile app stores, which is the choice of Apple et al from their reading the law.
According to Apple's statement on the matter, it won't be updating TikTok either, per the terms of PFACAA, meaning some functions might stop working over time.
"[The app stores'] attorneys are most certainly saying the same thing I am," McGill added, "which is Trump doesn't have the authority to [stop PFACAA enforcement], so why would you take the risk of somebody coming back in 75 days and saying alright, we're fining you because you violated the law."
What's Trump's game plan?
According to the PFACAA, the President had the authority to grant a one-time 90-day extension to the act's enforcement deadline of January 19, but only if there was a clear path to a qualified divestiture in place when the enforcement deadline hit. With no such deal announced prior to Sunday, Trump's executive order doesn't appear to be legal, McGill said.
"Trump's bet here seems to be finding someone with standing to challenge not banning it," McGill told us.
In other words, is anyone going to challenge his order in the next 75 days? Probably not, McGill predicted. In the meantime, TikTok gets to keep operating while the White House tries to sort out some form of deal to keep it available to Americans in the long run.
- China ever-so slightly softens stance on possible US TikTok sale
- The bell tolls for TikTok as lifelines to avoid January 19 US ban vanish
- US claims TikTok shipped personal data to China – very personal data
- TikTok wins right to stay in America past current Art of the Deal deadline on November 12th
If nothing happens in the next 75 days, enforcement of the ban is back on the table, and McGill is betting Trump plans to use that as leverage to get TikTok to face facts: Either the app goes dark in the US, and China loses all the money its sunk into TikTok as, ostensibly, a massive intelligence gathering apparatus, or it makes a deal to get at least some financial recompense out of the whole thing.
"Members of the House and Senate walked into classified briefings and were told what TikTok was doing," McGill said. "They walked out and voted overwhelmingly, with supermajorities in both houses, for this ban. That tells us that TikTok poses a clear and present danger to national security."
That tells us that TikTok poses a clear and present danger to national security
With the law passed, the US Supreme Court upholding it as not violating the First Amendment, and the enforcement period now in effect, there are only two ways PFACAA doesn't end up being enforced at the end of the 75 day period: Either China loses its share, or Congress repeals it. McGill doesn't think the latter is likely to happen.
As for TikTok being sold off, there's no legal way for China to retain any control over it, per PFACAA. The law says a "qualified divestiture" would mean China no longer has control, or any relationship with the US entity that ends up with ownership of TikTok.
In other words, even if the President were to negotiate a 50 percent US-owned stake in TikTok, as floated over the weekend, the other half of the ownership must not involve China. If it does, the divestiture would not comply with PFACAA, and Trump can't sidestep the law.
"If TikTok goes dark again in 75 days and doesn't come back, who's stuck holding the bag? It's Donald Trump," McGill said. "He's absolutely put himself in a corner … he's betting he's going to be able to get a deal done that's satisfactory to everybody."
What that ends up looking like is anyone's guess, but one thing is for certain: Firms distributing TikTok are facing a messy legal situation as long as PFACAA remains the law of the land.
On one side there's Trump's executive order, which says that the Attorney General shouldn't move to enforce penalties on distributors who didn't comply with PFACAA, even after the 75-day period ends.
On the other hand, senators who supported the bill are saying that anyone choosing not to comply with PFACAA in the wake of Trump's order, regardless of what he decrees, ought to err on the side of caution.
"Any company that hosts, distributes, services, or otherwise facilitates communist-controlled TikTok could face hundreds of billions of dollars of ruinous liability under the law, not just from DOJ, but also under securities law, shareholder lawsuits, and state AGs," Senator Tom Cotton (R-AR) warned on Sunday after TikTok said it was restoring services in the hope that Trump will figure something out.
"Think about it," the senator added.
To further complicate matters, Trump's order states that that any attempt to enforce penalties by anyone other than the federal AG will be seen as "an encroachment on the power of the Executive," which seems to render Cotton's threats moot, at least in part.
Don't expect TikTok to appear back in app stores anytime soon, in other words: No one wants to get in the middle of this mess. ®
Stop press
- MrBeast has reportedly joined a group of investors, hoping to put in an all-cash bid to acquire TikTok's US operations, led by Employer.com founder Jesse Tinsley.
- Meanwhile, Trump has indicated he would be OK with right-hand-man Elon Musk or Oracle's Larry Ellison being involved in the purchase of TikTok if it meant the US government owned half of the app.