On Monday, December 9th, TikTok Inc. and ByteDance Ltd. filed an emergency motion with the U.S. Court of Appeals Court for the District of Columbia (“Appeals Court”) that asks for a temporary pause on the Act that would effectively ban or force a sale of TikTok while TikTok works to file the paperwork necessary for review by the U.S. Supreme Court (“SCOTUS”).

“Estimates show that small businesses on TikTok would lose more than $1 billion in revenue,” TikTok wrote in a press release today, “and creators would suffer almost $300 million in lost earnings in just one month unless the TikTok Ban is halted.”

Waiting for SCOTUS…

Stick with me because this might sound odd, but TikTok is asking the Appeals Court to implement a temporary pause on the Act from becoming effective on January 19, 2025. Yes, they’re asking this same court that just denied TikTok’s attempt to overturn the Act that would potentially block TikTok in the U.S.

Why? Because of how quickly the January 19th deadline is approaching and potentially drawn out the process can be to have a case heard by SCOTUS. Also, not to mention the Administration change that’s coming in the same month.

Here’s how TikTok and the U.S. Government have agreed to proceed:

• December 9th: TikTok files this emergency motion.
• December 11th: The Government will file any response by this date.
• December 12th: TikTok will file any reply to the Government’s response.
• December 16th: TikTok wants to have a decision on a temporary pause from the Appeals Court by this deadline.

However, in a letter filed today, the DOJ writes to the court its belief “that it would be appropriate for the Court to deny [TikTok’s] motions without additional briefing.” The U.S. Government effectively thinks that the court has been given enough information to determine whether or not any temporary suspension (an injunction) of the Act is necessary and could get the case before the U.S. Supreme Court sooner rather than later.

Will Trump Come to Rescue TikTok?

In its latest motion, TikTok contends that a temporary injunction could allow the incoming administration time to evaluate the matter. The motion suggests that President-elect Trump and his administration could take steps to prevent the Protecting Americans from Foreign Adversary Controlled Applications Act from going into effect.

The motion notes that President-elect Trump has publicly stated “I’m gonna save TikTok,” and that his incoming National Security Advisor has said “we absolutely need to allow the American people to have access to that app.” It also cites a lawsuit filed by RFK Jr., one of Trump’s incoming nominees for a Cabinet position, challenging the Act.

Trump weighed in on the potential ban with NBC News on Meet the Press, stating, “I’m gonna try and make it so that other companies don’t be come an even bigger monopoly.”

@nbcnews

President-elect Donald #Trump weighs in on a potential ban on TikTok that could take effect one day before he assumes the White House if the app’s Chinese parent company does not divest.

♬ original sound – nbcnews

This kind of response should give concern to companies like Meta and YouTube, which have been noted as potential beneficiaries of any TikTok closure.

It’s possible that any ban on the app could be subject to an additional 90-day extension if divestiture negotiations are happening. The President can grant a one-time extension of up to 90 days to this 270-day deadline if they certify to Congress that:

• A path to executing a “qualified divestiture” has been identified for the application.
• There is evidence of significant progress towards executing the qualified divestiture.
• Binding legal agreements are in place to enable the qualified divestiture to be completed during the extension period.

The Act does not specify the procedure for the President to certify the conditions for the extension to Congress. However, the power to grant the extension rests solely with the President.

Here’s the reality: it’s too late for any sort of practical divestiture to happen. TikTok even admits as such in its filing, noting that from the beginning “timelines are indisputably too truncated for [TikTok and ByteDance] to effectuate a qualified divestiture before January 19.”

TikTok has some major problems if it is relying on the incoming Administration. As NBC News reports, many of Trump’s Cabinet and administration picks have shared public support for the ban. Also, Project 2025 called for TikTok to be “outlawed.” Lastly, Brendan Carr, who is Trump’s pick for FCC chair, supports a ban of TikTok.

How the “ban” becomes a reality.

The Act sets the stage for a TikTok ban by prohibiting U.S. companies from providing essential internet and app store hosting services to “foreign adversary controlled applications.” Since the Act specifically designates TikTok and ByteDance LTD as falling under this category, the consequence is that app stores would be barred from offering TikTok, effectively making it inaccessible to new users in the U.S. Existing users would also find themselves cut off, as the Act prohibits companies from maintaining or updating TikTok within U.S. borders.

While the Act does not explicitly ban TikTok, the impact of these prohibitions on third-party companies amounts to a functional ban. TikTok would be unable to reach new users or provide updates to existing ones. If companies like Apple or Google, who run the two largest mobile app stores in the U.S., fail to follow the Act, they would be facing penalties such as a $5,000 file multiplied by the number of users for every instance they violate the hosting prohibition. With TikTok’s U.S. user base exceeding 170 million people, the financial blow to any company touching the tech stack would be significant.

The Supreme Court Process

Putting aside whether or not the Appeals Court grants a temporary injunction, the process that TikTok must follow to obtain review from SCOTUS starts with a writ of certiorari.

TikTok must file what’s called a writ of certiorari that is essentially a document that asks the highest court in the U.S. to review the case. However, SCOTUS doesn’t have to accept the case, but legal experts think that the opportunity to opine on a First Amendment issue may be too tempting for the court to ignore. Meanwhile, others argue the focus on national security concerns, plus a bipartisan act by lawmakers, may be factors that lead the court to decline to take the case.

If SCOTUS takes the case, then the typical process starts where both sides file briefings and present at oral arguments before the Justices. We’ll likely get some amicus curiae briefs, which are “friend of the court” filings by organizations on both sides that have strong interests in the outcome of the case. Eventually, the Court releases its opinion.

Only time will tell what becomes of TikTok…

---

The case is TikTok Inc. v. Merrick Garland, 24-1113, (D.C. Cir.), filed on May 7, 2024. See also the full text of the Protecting Americans from Foreign Adversary Controlled Applications Act.

Full emergency motion and letter below.