President-elect Donald J. Trump is considering an executive order to allow TikTok to continue operating despite an impending legal ban until new owners are found, according to a person with knowledge of the matter.
The possible executive order, previously reported by The Washington Post, is in question as TikTok faces a deadline Sunday to be banned in the United States unless it finds a new owner. The popular video sharing app is owned by ByteDance, a Chinese company. Republicans have said for years that they see the app, which has been downloaded on millions of smartphones, as a threat to national security. It has become a rare issue that has united both parties in Congress.
If the Supreme Court upholds the law, which bans the app unless ByteDance sells it to a non-Chinese company, special treatment from Mr. Trump could be the only way TikTok can remain active in the United States in the short term. The law requires app store operators such as Apple and Google and cloud computing providers to stop distributing TikTok in the United States.
An executive order could try to direct the government not to enforce the law or delay enforcement to make a deal, a move that previous presidents have used to challenge laws. It's unclear whether an executive order would survive legal challenges or convince the app stores and cloud computing companies to take steps that could expose them to massive penalties.
Alan Z. Rozenshtein, a former Justice Department national security adviser and professor at the University of Minnesota Law School, said an executive order “should be taken with a medium-sized rock of salt.” Such an order is not law, he said, and would not legally change the legislation passed by Congress and signed by President Biden.
While there is some speculation that the app will still work if it has already been downloaded, the law also affects internet hosting companies such as Oracle and other cloud computing providers, and it is unclear how video loading times and app functionality will affect this. will respond.
A person close to Mr. Trump's team said some of his allies had had loose discussions about buying TikTok, but gave no details. Mr Biden, whose term ends on Monday, a day after the ban was due to take effect, is also under pressure to find a way to save the app.
The New York Times reported late Wednesday that TikTok CEO Shou Chew is expected to attend Trump's inauguration on Monday and has been given a seat on stage. TikTok declined to comment.
Mr Chew is expected to be joined on stage by other technology executives: Mark Zuckerberg, the co-founder of Meta; Jeff Bezos, the founder of Amazon; Elon Musk, Mr. Trump's megadonor; and Tim Cook, Apple's CEO, who personally donated $1 million to the opening committee.
Mr. Trump had previously supported a TikTok ban but publicly changed his position last year, shortly after a meeting with Jeff Yass, a Republican megadonor who owns much of ByteDance.
Mr. Trump has said they have not discussed the company. But Mr. Yass helped found the trading firm Susquehanna International Group and is one of the biggest supporters of the conservative lobby group Club for Growth. The group has hired people with ties to Trump, such as Kellyanne Conway, his former top adviser, and Republican consultant David Urban, to lobby for TikTok in Washington.
TikTok has also worked to gain inroads into the Trump team through Tony Sayegh, who was a Treasury official during Trump's first administration and now heads public affairs for Susquehanna.
Mr. Sayegh has ties to the Trump family and was a key part of the campaign's decision to join TikTok this summer. Several members of the family, including Ivanka Trump, Donald Trump Jr. and Kai Trump, the granddaughter of the newly elected president, have also joined the app.
Mr. Trump's interest in TikTok is not entirely due to his advisers. He came to see how well videos about him performed on the platform, and his advisers said it helped him expand his reach to a new type of voter during the campaign.
Any actions Mr. Trump could take against TikTok are complicated. The law only gives the president the ability to extend the deadline for a sale if there is “significant progress” toward a deal that would put the company in the hands of a non-Chinese owner.
It also requires that the deal can be completed within 90 days of renewal. It is unclear exactly how an expansion will work if Mr. Trump tries to implement it after the ban takes effect.
TikTok has maintained during its lawsuit against the law that such a sale is unworkable in part because of the prescribed time frame. A group led by billionaire Frank McCourt has made a bid to buy the app in recent months — albeit without its mighty algorithm.
Mr. Trump could also try to circumvent the law by instructing the government not to enforce it.
But app store operators and cloud computing providers could demand more than a soft assurance from Mr. Trump that he won't punish them if they don't implement the ban, said Ryan Calo, a professor at the University of Washington School of Law. The potential legal liability for companies that break the law is significant: penalties could reach $5,000 per person who can use TikTok once the ban takes effect.
“You could have a policy of not enforcing this ban,” said Mr. Calo, who was part of a group of professors who urged the Supreme Court to overturn the TikTok law. “But I think conservative companies might just say, 'Okay, you're not going to enforce it.' But it's on the books and you can enforce it at any time.'”
Mr. Trump's pick for attorney general, Pam Bondi, has declined to say whether she will enforce the law.
“I cannot discuss pending litigation,” she said during her Senate confirmation hearing on Wednesday. “But I will talk to all the career prosecutors who are handling the case.”
Mr. Trump has a third option: calling on Congress to reverse a policy it overwhelmingly approved last year with broad bipartisan support.
“Congress can overturn this at any time,” Calo said.
Senator Chuck Schumer of New York, the Democratic leader, said in the Senate on Thursday that he was concerned about the possibility of a ban on TikTok.
“It is clear that more time is needed to find an American buyer and not disrupt the lives and livelihoods of millions of Americans, of so many influencers who have built a good network of followers,” he said. He added that he had also made these views clear to the Biden administration, accusing Republicans of blocking a bill that would have extended the deadline for a ban by 270 days.
A White House official said Thursday that the administration's clear position was that TikTok should operate with a U.S. owner. Because of the timing of the potential ban — which comes over a holiday weekend before the inauguration — it would be up to the next administration to implement the law, the official said.
Catie Edmondson reporting contributed.
