Ban is set to take effect this week, unless TikTok cuts ties with parent firm.
The Supreme Court passed up a chance to intervene on behalf of TikTok on Wednesday, when a batch of new rulings did not include a verdict in the case challenging an imminent ban of the app.
Unless TikTok severs ties with China-based parent company ByteDance, the ban will take effect on Sunday, the day before President-elect Donald Trump assumes office.
Still, TikTok retains several avenues for avoiding a ban in a high-stakes standoff that could be decided in its final hours, experts told ABC News.
Roughly 170 million TikTok users in the U.S. could lose access to the app altogether at the end of this week if the company chooses to take the app dark, or they may end up scrolling as if nothing has happened, the experts added.
“This has been a game of chicken all along,” said James Lewis, a data security expert at the Center for Strategic and International Studies.
TikTok did not immediately respond to ABC News’ request for comment.
Here’s how TikTok could still avoid a ban, according to experts.
Supreme Court delays the ban
A straightforward way for TikTok to avoid a ban would require a last-minute intervention from the Supreme Court, experts said.
The nation’s highest court does not plan to release formal rulings before Sunday. The court, however, could issue a temporary injunction that pauses the ban while justices weigh the case.
During oral arguments earlier this week, a majority of the justices appeared inclined to uphold a federal law that would ban the company unless it divests from China-based parent Bytedance.
The court is unlikely to issue an injunction since it would only take place if a majority of the justices believe TikTok stands a good chance of winning its challenge of the ban-or-sale law, Saurabh Vishnubhakat, a professor at the Cardozo School of Law who studies tech-related issues, told ABC News.
“The longer the court waits to issue an injunction, the less likely it is that the injunction will come,” Vishnubhakat said.
TikTok cuts ties with Bytedance
Another avenue for TikTok to avoid a ban is made clear in the law: The app could cut ties with parent company ByteDance as part of a sale to a different firm.
In fact, the law allows for a 90-day extension of the deadline for a TikTok sale, as long as the company is advancing toward an agreement. Under such a scenario, the deadline would move back to April, providing additional time without a ban while the Supreme Court weighs the case.
In theory, TikTok could announce the commencement of negotiations with a potential buyer and urge President Joe Biden to grant the 90-day extension before the ban takes effect, experts said.
Such an outcome is unlikely, since ByteDance has shown little appetite for a sale and it would be difficult to establish credible negotiations in just a few remaining days, Sarah Kreps, the director of the Tech Policy Institute at Cornell University, told ABC News.
“It would be very difficult to disentangle the two companies,” Kreps said.
Kreps added that the law gives leeway to a sitting president in setting the threshold for negotiations that would warrant a 90-day extension. Trump, who opposes a TikTok ban, could grant the extension after he takes office with scant evidence of negotiations, temporarily reversing the ban, Kreps noted.
“A motivated actor like Trump might say, ‘We think this is fine,’” Kreps said.
Trump administration declines to enforce the ban
TikTok could continue its current U.S. operations if the Trump administration deprioritizes enforcement of the ban or outright refuses to carry out the law, experts said.
The law orders distributors like Apple and Google to stop offering the social media platform in their app stores, and it requires cloud service providers like Oracle to withhold the infrastructure necessary for TikTok to operate.
In theory, Trump’s Justice Department could opt against enforcement of the law, reassuring the likes of Apple and Oracle that the companies would not face prosecution in the event of a violation, experts said.
If Trump orders the Justice Department to forego enforcement, he could open his administration up to a legal challenge centered on the refusal to faithfully execute the law, Vishnubhakat said.
However, an order to lower the urgency of enforcement — which could grant third-party companies a similar sense of reassurance — would fall under the latitude afforded to the executive branch in setting its policy priorities, he added.
“Trump could come out and say, ‘Enforcement is unnecessary and inadvisable from his standpoint,’” Vishnubhakat said.
The Trump transition team did not immediately respond to ABC News’ request for comment.
Congress repeals the ban
Along the same lines, TikTok could continue to operate beyond the deadline on Sunday and await a potential repeal of the law that banned the app in the first place.
A repeal would require passage in both houses of Congress, landing the measure on Trump’s desk for his signature.
Congress voted in favor of the ban only nine months ago. In the House of Representatives, the ban passed by an overwhelming margin of 352-65. In the Senate, 79 members voted in favor of the measure, while 18 opposed and 3 abstained.
Since then, however, Trump has voiced his disapproval of the measure and Republicans have taken control of both chambers.
Still, the prospect of repeal is unlikely, Lewis said, pointing to bipartisan support for the ban as well as other issues that appear to be a higher priority for Trump.
“Congress can always change its mind, but I don’t think it’ll do it,” Lewis said. “If you were Trump, why would you spend your political capital to save TikTok?”
Source: abcNEWS
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