“Congress deemed it necessary to acknowledge that risk given the serious national-security threats it poses. And because the record demonstrates that Congress's decision was considered, consistent with long-standing regulatory practice, and devoid of an institutional purpose to suppress particular messages or views, we are not in a position to set it aside. Are,” Justice Sri Srinivasan said in concurrence. ,
Both the US Justice Department and TikTok have previously requested a speedy decision to date. Since the law remains intact, the TikTok ban could go into effect a day before Trump's inauguration next month.
In fact, the app is likely to stick around for a few more months. A 90-day extension of the deadline is on the table for the Biden administration, which would leave the issue in Trump's hands. What is more certain is that ByteDance will appeal the court's decision today and take it to the Supreme Court next, where it is expected to take up the case and issue its decision late next year.
Friday's decision is not a surprise to those who have been following the case. In oral arguments before the Court of Appeals in September, the judges had already taken the view that the app is a legitimate national security concern for the US. The remaining question was whether a ban would be excessive based on those risks and would cause greater harm to freedom of speech. The judges today definitively said the answer was no.
“The courts give the executive branch wide latitude on national security issues,” says DeWardick McNeil, a former Defense Department official and currently managing director of the D.C.-based consultancy Longview Global. Today's opinion of the court actually cites “probable evidence presented by the US government demonstrating that the Act is narrowly tailored to protect national security”.
While Congress could theoretically repeal the PAFACA Act, it would be a tough case for Trump to convince them to do so because “there is a vast majority of people on Capitol Hill who supported this legislation,” McNeil says. .
To save TikTok, Trump could use the powers of the executive branch to his advantage. “While you can't completely disregard the law, you can decide how much you want to focus on the prosecution of the law and how aggressively you want to enforce the law,” says McNeil.
Alan Rosenstein, Associate Professor of Law at the University of Minnesota Law School WIRED previously told The PAFACA Act is written so that the US President can decide whether TikTok is “no longer controlled by a foreign competitor.” This could make it an easier way for the Trump administration to allow TikTok to continue operating in the US.
To avoid creating controversy with his Republican allies in Congress, Trump may also make a deal to sell TikTok to an American investor. At least two major bids have already surfaced to buy the app, including bids from former US Treasury Secretary Steven Mnuchin and American real estate investor Frank McCourt.