What’s next for TikTok? Kreps outlines possible paths forward

The U.S. Supreme Court upheld a federal law that would effectively ban TikTok in the United States.

Sarah Kreps, professor of government and law, is director of the Tech Policy Institute at Cornell University. She discusses possible paths forward for the popular app – acknowledging this has been a rapidly shifting set of circumstances. 

Kreps says: “President Joe Biden could still issue a 90 day extension before he leaves office, although he would have to show some evidence that TikTok was showing good faith progress toward divestment and unless that’s happened behind closed doors, then that’s not a viable path. This path would also undermine the original national security motivation behind the law if it were just that easy to issue an extension on the basis of limited evidence that ByteDance has, in good faith, been working toward a sale.

“President Donald Trump could come into office on the 20th and suggest that a particular scenario meets the basis of a ‘qualified divestiture’ and restore TikTok. This scenario requires buy-in from both TikTok and ByteDance, which has said it does not intend to sell. This scenario would entail some sleight-of-hand from ByteDance that could easily be challenged on legal grounds (e.g., by competitors of TikTok) that the new corporate ownership actually addresses all national security concerns, specifically the fears of hidden backdoor data access, which would require exhaustive code audits across millions of lines of code. This is why Project Texas, which would have given control to a U.S. company on U.S. soil, was abandoned – the plan could never assuage Congress that it was airtight and not still subject to Chinese government data manipulation.

“If TikTok does ‘go dark’ and new Chinese alternatives emerge, then these new sites are also covered by the law, but TikTok was the lightning rod. It will be harder to keep track of new alternatives, and the incoming DOJ could more credibly turn a blind eye to alternatives like RedNote or Lemon8. In the meantime, the fracturing of 170 million Americans across other sites helps address the spirit of the law – at least now the Chinese government cannot manipulate opinion en masse.

“What about an Executive Order? EOs cannot legally override or cancel a law passed by Congress, as laws enacted through the legislative process have a higher legal standing. If an EO conflicts with an existing law, the law takes precedence, and the EO can be struck down by the courts. But Trump could issue an EO that changes how an existing law is implemented and potentially alter its practical impact (see point 3 – Trump simply enforces a TikTok ban but does not address alternative sites that might emerge).

“Will Americans be able to access TikTok on Sunday? As of now, it looks like Apple and Google would remove TikTok from their stores, and service providers would also not allow access. Individuals could use a VPN, but these are clunky and will undermine what people like about TikTok – its ease of use and convenience. Having to use a VPN will almost certainly prompt people to find alternatives, which will also help achieve the spirit and letter of the law.”

For interviews contact Becka Bowyer, cell (607) 220-4185, rpb224@cornell.edu.