Trump's TikTok Reprieve Won't Fix the Law's Free Speech Problems
Extending the deadline gives TikTok a temporary lifeline, but the real issue—government overreach in tech and speech regulation—still needs a congressional fix.
President Donald Trump is on the right track regarding TikTok. The app should remain available in America. Unfortunately, that is not as simple as pausing the clock via executive order.
TikTok is the first app to be impacted by a 2024 law prohibiting the "distribution, maintenance, or updating" of the app if it cannot find a government-approved buyer that separates it from its Chinese parent company ByteDance—but the terms of that law could be applied to other apps. And while the law names four countries as foreign adversaries, it leaves the potential to expand that label to other countries as well.
The requirement that TikTok be sold by parent company ByteDance was upheld by the Supreme Court after being approved by Congress and signed by former President Joe Biden. While millions of Americans are glad to have their favorite app back after it went dark in the U.S. for a period between January 18 and 19, an executive order extending the deadline does not resolve the long-term ramifications for speech and broader regulation of the tech industry.
While proponents of the bill will defend it as regulating a foreign company, the law's burdens fall largely on American companies. Currently, new users can no longer download TikTok from app stores, which could face penalties if they do not comply with the law's prohibition on distributing, maintaining, or updating the app. As a result, the law also sets a concerning precedent, as it allows the government to interfere with rules the app stores set and other potential government interventions in the tech market.
The statute of limitations for failing to comply with the law's prohibitions is five years. This means that even a promise not to enforce the law for the entirety of the Trump administration could still allow a new president with a different opinion to enforce the law in the future. For American companies wary of the law's fines, a mere promise of non-enforcement may not be enough for them to allow TikTok back into their app stores.
While extending the deadline is generally good for the free expression of the users who have chosen TikTok as their preferred platform, doing so via executive order raises questions about the separation of powers and also illustrates the significant potential discretion of a president under the law. If a president can simply sign an executive order and change a law after the fact, it sets a dangerous new precedent—even if it results in a positive outcome.
The "divest or ban" law was passed by Congress, so a true solution to these problems would require Congressional action to remedy it. For example, Sen. Ed Markey (D–Mass.) has discussed congressional action to delay the ban. This route is more likely to provide an opportunity for further scrutiny and debate of the underlying concerns and consider policy approaches less likely to impact freedom of speech or American businesses. If Congress has genuine concerns about data, it could consider less restrictive means, such as requiring data localization or audits for TikTok, rather than requiring a sale.
This should concern us all, regardless of how one feels about TikTok itself. The law was rushed through Congress and set a deadline for sale at a time when emotions and tensions around both social media apps and China were high. In that climate, expansive executive power and the absence of due process did not receive the scrutiny they deserve, either in Congress or public debate.
Voices from both sides of the aisle are recognizing the significant impact banning TikTok would have on Americans' freedom. Whether or not TikTok is ultimately saved, this moment should spur meaningful conversation about when the government can intervene in our rights in the name of national security, and how we ensure proper checks on that power.
