‘TikTok‘s days are numbered:’ expert breaks down Supreme Court case as users await decision

NINA MOINI: In just three days, TikTok could be gone for good in the US. And users are spiraling over the possibility and savoring their last days.

SPEAKER 1: So I'm starting to give up hope that there's going to be a Hail Mary moment at the end of this, that's going to save this app. (SOBBING) Feel so dumb coming on the internet and crying about an app. But the fact is that this has been a sense of community for me for years now. And it got me through really, really hard times in my life.

SPEAKER 2: Brief housekeeping for you. Number one, please follow my Instagram and my YouTube, and also my podcast, because it's not looking good, team. It's not looking good. It's looking like I'm going to be (SINGING) unemployed.

SPEAKER 3: And with that, the TikTok era comes to an end. Good night.

[GREEN DAY, "GOOD RIDDANCE (TIME OF YOUR LIFE)"] I hope you had the time of your life

[VIOLINS SOLO]

NINA MOINI: Lots of emotions there, as you heard. Well, the video app gained popularity first during the pandemic and quickly became a means of entertainment, information, and income for some people. A federal appeals court upheld a ruling that gave TikTok an ultimatum-- sell off its US operation to a company not owned by China or shut down.

That deadline is on Sunday again. And the platform asked the Supreme Court to put a halt on the ban, but justices have yet to make a decision. To explain this legal limbo we're in and its implications is Alan Rozenshtein. He's an associate professor of law at the University of Minnesota. And he's been following this case very closely. Thank you for joining us, Professor.

ALAN ROZENSHTEIN: Thanks for having me.

NINA MOINI: Well, you heard the little montage there that we had of people who feel like they're in limbo, are really sad about it. But can you explain for us where things actually legally stand right now, where we're at in the process?

ALAN ROZENSHTEIN: So last week, the Supreme Court heard oral arguments in TikTok's attempt to get the Supreme Court to strike the law down, or at least pause it. That argument I don't think went particularly well for TikTok. And I think it's very likely that one way or the other, the Supreme Court upholds the law and allows it to go into effect on the 19th. If that happens, TikTok is not technically banned.

What happens is that app stores, like Apple and Google and the cloud service providers like Oracle that actually host TikTok, are not allowed to do business with TikTok anymore. And so the apps will be pulled from the app stores. And TikTok will have to move its operations outside the United States. For those 170 million Americans who already have TikTok downloaded, they might, in theory, actually still be able to access TikTok. But TikTok itself has said that it will shut down fully on the 19th, even though it technically doesn't have to, I think to drive home the potential implications of this law.

NINA MOINI: Yeah. And would you say more about why you feel like TikTok may not come out victorious in this? Or you mentioned that their arguments, you didn't think that they were that great.

ALAN ROZENSHTEIN: So Congress, in enacting the law, and then President Biden in signing it, put forward two justifications. One is that TikTok, like all social media companies, collects a lot of data on Americans. But unlike most social media companies, TikTok is ultimately owned by a Chinese company, and therefore potentially controlled by the Chinese government, which has engaged in a lot of espionage in the past and presumably would like this data on Americans.

And the other concern that the government raised is that, again, although TikTok's recommendation algorithm is just as opaque and unscrutable as every other recommendation algorithm, it is, again, ultimately controlled by a Chinese company, and therefore the Chinese government, and so could potentially be manipulated in China's interest and against the United States' interests.

I've always thought that those arguments and rationales were quite strong. The DC circuit, which upheld the law, also held that they were strong. And then just in the oral argument before the Supreme Court, I didn't count five votes to strike the law down. And at the end of the day, you need five votes on the Supreme Court to win.

NINA MOINI: So all of this is going on, and it seems so far removed from a lot of people's daily lives. We've talked to business owners on this program who say they solely rely on TikTok for their income. It's very serious for them. If people are in that situation, based on what you're reading the room and in your analysis, what would you say to those folks? Should they just cut their losses and get off TikTok? Or is there maybe hope to reinvent that or bring that back into their stream of their businesses and livelihoods, do you think?

ALAN ROZENSHTEIN: So I take very seriously the concerns of TikTok's users, and especially the minority of users that really spend a lot of time on the platform and even make their income on the platform. I don't think this law is a great option. I think it's the best of two bad options, which is to either ban the law or allow this national security threat. And so I really do feel for these people.

I do, however, think that ultimately TikTok's days are numbered, unless ByteDance, its parent company, chooses to sell. But that would require getting the Chinese government to allow that sale. And there's no indication that that's going to happen. So my advice would be that if you spend a lot of time on TikTok, either as a user or creator, it's time to diversify, preferably to American, or at least non-Chinese-owned, social media companies that won't potentially face a similar ban in the future.

NINA MOINI: Yeah, could you say more about, could there be a domino effect with other foreign-owned apps? I just learned about this one, Red Note, today. I don't even have a TikTok. So I'm way behind the game here. But I learned about Red Note. Why is the government targeting TikTok? And could there be a domino effect with other foreign-owned apps?

ALAN ROZENSHTEIN: There could be. The law has two parts to it. One part explicitly singles out TikTok and ByteDance and requires a divestment or ban. But the other half of the law, which, really, we haven't been talking about because it's not been at issue yet, is that it gives the president-- currently President Biden, but in a few days, President Trump-- the discretion to begin a similar divestment or ban process for social media companies that are controlled by Chinese entities.

And so right now, although people can use Red Note and download the app and all of that, it might be the case that at some point in the future, the president decides that Red Note poses the sort of threat that TikTok posed, and therefore triggers yet another divestment or ban requirement for Red Note. But to be clear, this part of the law only applies to social media companies that are owned or operated by entities in four countries-- China, Russia, North Korea, and Iran. And really, it's China that everyone's concerned about because China is the one that has this really vibrant social media ecosystem.

NINA MOINI: And come Monday, with the inauguration, President Trump will be taking over. I just saw on CNN the CEO of TikTok is going to be at the inauguration. So his relationship to the topic is very different. Can the president do anything to save TikTok, the next president?

ALAN ROZENSHTEIN: So Trump's role in this is, as with many Trump-related things, quite a wild card. It's true that Trump has come out against the TikTok ban. But it's important to remember that he was for the ban before he was against it. He, in fact, during his first administration, tried to ban TikTok and WeChat, another Chinese messaging app. That was blocked by the courts for unrelated legal reasons. But there's quite an aboutface that Trump took during the campaign.

In terms of what Trump can do, if he chooses to try to help TikTok, he has some options, but they're pretty limited. The most legally viable options, but probably the ones that are hardest to pull off, are either brokering a sale of TikTok or of getting Congress to repeal the law. That would solve the problem fully. But I don't think that's going to happen anytime soon for a variety of political and economic and geostrategic realities.

What Trump can do is, on his own authority, he could, for example, declare either through a press release or even an executive order if he wants to make it very official that the government is not going to enforce this law. The problem there is that although the law targets TikTok, the enforcement mechanism is actually aimed at companies like Apple and Google and Oracle.

And if I were Apple's general counsel, I would not advise my CEO to continue doing business with TikTok because the president said it's OK. Because the president can say whatever he wants. He can issue whatever executive orders he wants. But on the 19th, it will be illegal for these private companies to do business with TikTok. And so short of, I think, putting together a deal, I'm skeptical that there's that much that President Trump can do.

NINA MOINI: What are you going to be watching for this weekend? Sunday is that big date that everybody is watching. What's the significance of that? And what are you going to be watching for?

ALAN ROZENSHTEIN: So a couple of things. First, I'll be watching to see what, if anything, the Supreme Court says. It heard oral argument on Friday. And we are expecting it to say something literally any day or any moment now. And hopefully, it'll clarify the law's position before the 19th. If it doesn't, then the law goes into effect. And then we'll have to see a couple of things.

First, we'll see will TikTok actually fully shut down? If it fully shuts down, what will the response from the public be? I mean, obviously, some users will be very upset, but what percentage? Will they manage to get Congress to act? Or will everyone just move to competitors like YouTube Shorts and Instagram Reels and this problem goes away? And then, of course, what does Trump do? What sort of moves does he make?

And then ultimately, how does that affect, again, the actual regulated parties here, the Apples and Googles and Oracles, and whether they're willing to do business. So you have a ton of moving parts. And so I think the next couple of weeks are very uncertain. But I think ultimately, TikTok's days are numbered.

NINA MOINI: All right, Professor, thank you so much for coming on and breaking all of that down for us. We really appreciate your time.

ALAN ROZENSHTEIN: Thanks for having me.

NINA MOINI: That was Alan Rozenshtein, Associate Law Professor at the University of Minnesota.