The U.S. Supreme Court has ruled that the Protecting Americans from Foreign Adversary Controlled Application Act — the law that requires ByteDance Ltd. to divest of TikTok or the app will be banned in the U.S. — is not a violation of the First Amendment. ByteDance Ltd. was unwilling to sell to an American company, so on January 19, the app was banned from app stores in the U.S. Further, it will no longer be updated and supported in the U.S., eventually rendering it unusable.

However, on January 21, President Donald Trump signed an executive order giving TikTok a 75-day reprieve in hopes of negotiating a sale. This is in contrast to an executive order Trump signed in 2020 that sought to ban TikTok because of the threat it posed to the U.S. More on that below.

In a previous article, I discussed the privacy and national security risks that TikTok poses. The first is that it collects a massive amount of personal data, even when it is not in use. It collects data among users’ contacts as well as users. That data is made available to the Chinese Communist Party’s intelligence agencies, as per Chinese law.

The second risk is that the Chinese government intentionally censors or up-votes content that furthers the CCP’s agenda on U.S. devices. This includes censoring content about Tiananmen Square, Uyghurs, and Hong Kong protests, and propagating theories about the origins of Covid-19 that bolster the Chinese government’s preferred narrative.  Considering that almost half of Americans between the ages of 18 and 29 regularly get their news from TikTok, Beijing has an opportunity to feed this demographic a media diet of its choosing.

Now the app is in a state of limbo.

TikTok Flip Flop

In 2020 President Trump had signed an executive order calling for a TikTok ban because of the threat it posed to the U.S. The order did not stand because the courts determined it exceeded the authority of the executive branch. From 2021 through 2022, ByteDance negotiated with executive branch officials, but those negotiations stalled.

Then in April 2024, Congress passed the Protecting Americans from Foreign Adversary Controlled Application Act. The Act “makes it unlawful for any entity to provide certain services to ‘distribute, maintain, or update’ a ‘foreign adversary controlled application’ in the United States” (U.S. Supreme Court opinion). After TikTok was designated a “foreign adversary controlled application,” ByteDance had 270 days to comply. The end date was January 19, 2025.

However, the Act also stipulated that the president may grant a one-time extension of up to 90 days if ByteDance was in the process of divestiture and showed evidence of significant progress, including legal documents.

In the ensuing court case, plaintiffs had argued that the ban was a violation of First Amendment rights. The Supreme Court ruled that the Act was not a violation of the First Amendment, and the ban stood.

So now tech companies are caught between the law, which says they cannot offer TikTok and other ByteDance-owned apps in their app stores and President Trump’s executive order granting 75 more days.

What Does TikTok Have That U.S. Tech Companies Can’t Replicate?

Opponents of a ban on TikTok say that it would financially harm content creators and businesses that rely on it to promote their content or products. However, these groups have other options. They could move to Youtube Shorts or Instagram Threads. So, what does TikTok have that these other platforms don’t?

In short: the algorithm.

TikTok is used by over 170 million Americans, most of whom are under 30. While opponents say that the app’s reach is what makes it an important part of their business model, TikTok’s bread-and-butter is a proprietary algorithm that provides video recommendations. The recommendations automatically play on its “For You” page. It is truly algorithmically based rather than based both on an algorithm and on whom the user decides to follow — the usual industry approach.

ByteDance is secretive about its proprietary algorithm, but journalists and tech engineers have been able to discern how it learns the best way to keep a user hooked on the app. A Wall Street Journal video investigation showed how it quickly (in about 30-45 minutes) figures out the user’s interests and vulnerabilities. It then takes users down niche and extreme content to keep them on the app longer. The Journal’s reporters discovered this by setting up one hundred automated user accounts to reverse engineer TikTok’s recommendation system.

Rather than factoring in likes or comments, TikTok’s algorithm uses the amount of time the user lingers on a video to determine what content to recommend next. This makes a difference because sometimes we linger on things because they are shocking, and our brains are trying to process what is happening rather than because we like what we see. (Think of the proverbial train wreck that you can’t look away from.)

Thus, as the user watches videos that TikTok recommends, the content can become more harmful or extreme, going from most watched videos to the fringes where niche interests lie and where content is sporadically moderated. Those niche interests are not necessarily what the user wants to see; in fact, sometimes they are things that the user would have never thought to look for. Once you have seen, you cannot unsee. TikTok knows this and knows that it is exploiting and harming adolescents.

It is exploiting adults’ attention too. From an ethics standpoint, one could argue that businesses that use TikTok to find clients or sell products are using exploitive practices to garner the user’s attention. TikTok, for its part, gets lots of granular user data. Furthermore, while the app serves up extreme, and sometimes perverse, content to a young user, that data is stored on Chinese servers and could be used against the TikTok user later in life as a type of blackmail.

In another article, we’ll look at why the Supreme Court decided banning TikTok was not a violation of free speech.

Note: You may also wish to read lawyer Richard Stevens’s take on the recent Supreme Court ruling: A foreign adversary’s AI-empowered threats to national security tipped the Supreme Court scales against TikTok. One issue is that typical media must guess who their users are. TikTok constantly identifies and gathers information on users in order to manipulate them — on behalf of China.