Over the past few years, TikTok has grown into one of the most popular social media platforms in the world, available in 155 countries and capturing over a billion users worldwide^[1]Thomas Casadei, TikTok: A Legal Perspective on the Digital Environment, Highly Accessed by Minors, 48 REV. DERECHO PRIVADO 87 (2025). This document can be found in HeinOnline’s Law Journal Library. with its short-form videos, karaoke-style singing, viral challenges, and creative communities. TikTok has established itself as a cultural phenomenon and an integral part of life online, particularly for younger generations. However, this rise in popularity has not come without controversy, and the TikTok Ban debate is far from over.

At the center of the debate is TikTok’s ownership by ByteDance, a Chinese-based technology company. Concerns about data privacy, national security, and the potential influence of foreign governments have fueled efforts to restrict or ban TikTok in the U.S., leading to a complex legal and political battle. These events underscore the evolving landscape of social media regulation in the U.S., highlighting the tension between national security concerns and the interests of global technology companies.

After several legal battles, state-level bans, and federal action, Congress passed a law that would force TikTok’s parent company, ByteDance, to divest its U.S. operations or face a nationwide ban. While supporters of the ban argue that it is necessary to protect American users from potential cybersecurity risks, critics warn that such actions raise serious First Amendment concerns and could set a precedent for future government intervention in digital platforms. This post examines the key developments in the TikTok ban, the legal and constitutional questions at stake, and the broader implications for digital regulation and free speech.

Background: How Did We Get Here?

We first covered the TikTok ban back in May 2023, analyzing the bipartisan push to grant President Biden the power to prohibit TikTok, and the testimony of TikTok CEO Shou Zi Chew before the House Energy and Commerce Committee. Since then, significant legislative and legal developments have intensified the fight over TikTok’s future in the United States, resulting in federal action that could reshape how the government regulates foreign-owned digital platforms.

Legislative Action: The Passage of PAFACA

In April 2024, Congress passed the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA)^[2]H. Rept. 118-417 2 (2024-03-11) PROTECTING AMERICANS FROM FOREIGN ADVERSARY CONTROLLED APPLICATIONS ACT. This document can be found in HeinOnline’s U.S. Congressional Serial Set. (H.R. 7521), which President Joe Biden signed into law. The law required ByteDance to divest TikTok’s U.S. operations within 180 days (by January 19, 2025) or face a nationwide ban. If ByteDance failed to sell TikTok, U.S. entities would be prohibited from distributing the app through marketplaces like the Apple App Store and Google Play, as well as from providing web hosting services that support the platform, essentially making it inaccessible to U.S. users.

PAFACA marked a major turning point in the debate over foreign-owned digital platforms, triggering a series of legal challenges and setting the stage for a historical Supreme Court ruling.

Legal Challenge: TikTok v. Garland

Shortly after the passage of PAFACA, ByteDance and TikTok challenged the law in court (in TikTok v. Garland^[3]TikTok Inc. & ByteDance Ltd. v. Garland, Nos. 24-1113, 24-1130, 24-1183 (D.C. Cir. Dec. 6, 2024). This document can be found in HeinOnline’s Fastcase Premium database.), arguing that it violates the First Amendment by restricting access to a major communication platform.

The legal question centered on whether PAFACA constituted a content-based restriction on speech, which would require strict scrutiny (the highest constitutional standard), or a national security regulation that only incidentally affected speech, which courts might uphold under a lower standard.

The government defended PAFACA, arguing that it did not regulate speech itself, but instead targeted foreign ownership and addressed national security threats, such as data collection and potential content manipulation by a foreign adversary.

On January 17, 2025 the U.S. Supreme Court upheld the law, ruling that the ban was a valid national security concern rather than an unconstitutional restriction on speech (read the Slip Opinion here ^[4]24-656 24-657 U.S. Reports 1 (2025) TikTok Inc., et al. v. Merrick B. Garland, Attorney General. This document is available in HeinOnline’s U.S. Supreme Court Library.). This meant that on January 19, 2025, TikTok would be removed from U.S. app stores and unavailable for U.S. users to access.

Trump’s Executive Order: A Temporary Reprieve

On January 20, 2025, one day after TikTok was officially taken down, President Donald Trump issued an executive order^[5]90 Fed. Reg. 8611 (2025), Thursday, January 30, 2025, pages 8451 – 8623. This document is available in HeinOnline’s Federal Register Library. delaying the enforcement of the ban by 75 days. This allowed TikTok to resume operations temporarily, leaving its future uncertain as legal and political battles continue.

Does the TikTok Ban Address National Security Risks or Raise Broader Concerns?

The TikTok ban is at the center of a larger conversation about national security, digital privacy, and free speech. While the U.S. government has justified restrictions on TikTok based on security concerns, critics argue that the ban sets a troubling precedent for digital regulation.

Legal Frameworks Behind the Ban

The U.S. government has relied on two key legal mechanisms to justify its actions against TikTok:

1. The Committee on Foreign Investment in the United States (CFIUS)-^[6][ii] (April 24, 2006) Committee on Foreign Investment in the United States (CFIUS). This document is available in HeinOnline’s U.S. Congressional Documents database. This interagency committee is responsible for reviewing foreign investments in U.S. companies and determines whether such transactions pose a national security risk. Under 50 U.S.C. § 4565, CFIUS has the authority to block or unwind foreign acquisitions that could lead to undue foreign influence over critical U.S. infrastructure or user data. Here’s a look at one scholarly essay from the Columbia Law Review^[7]Kristen E. Eichensehr & Cathy Hwang, National Security Creep in Corporate Transactions, 123 COLUM. L. REV. 549 (March 2023). This article is available in HeinOnline’s Law Journal Library. examining the expanding role of national security in corporate transactions, a trend the authors call “national security creep.” The essay discusses increased regulatory oversight, particularly through CFIUS, and its growing impact on dealmaking and economic policy.
   
   
2. The International Emergency Economic Powers Act (IEEPA)-^[8]1 [ii] (September 28, 2023) International Emergency Economic Powers Act: Origins, Evolution, and Use. This document can be found in HeinOnline’s Congressional Research Service Reports. This law grants the President broad authority to regulate foreign transactions when a national emergency is declared.^[9]2018 Edition Supplement II Vol. III 756 (2018) Sections 1701 – 1803. This document can be found in HeinOnline’s U.S. Code database. The Act has historically been used to restrict trade with foreign entities deemed security risks, including sanctions on Chinese telecommunications firms such as Huawei^[10]1 4 (February 23, 2021) Huawei and U.S. Law. This document can be found in HeinOnline’s Congressional Research Service Reports. and ZTE^[11]Grace Sullivan, The Kaspersky, ZTE, and Huawei Sagas: Why the United States Is in Desperate Need of a Standardized Method for Banning Foreign Federal Contractors, 49 PUB. CONT. L.J. 323 (Winter 2020). This document can be found in … Continue reading over concerns about espionage and intellectual property theft.

The Expanding Scope of U.S. Digital Regulation

PAFACA represents a significant expansion of government authority over foreign-owned digital platforms. Similar legislative and executive actions include:

• The No TikTok on United States Devices Act:^[12]1 1 (March 28, 2023) Restricting TikTok (Part II): Legislative Proposals and Considerations for Congress. This document is available in HeinOnline’s Congressional Research Service Reports. Sought to limit presidential exemptions under IEEPA regarding TikTok’s operations.
• The SAFETY on Social Media Act of 2023:^[13]1 14 (April 9, 2024) TikTok: Frequently Asked Questions and Issues for Congress. This document is available in HeinOnline’s Congressional Research Service Reports. Proposed listing certain foreign-owned apps as “untrustworthy” and restricting their distribution.
• Executive Order 14117:^[14]89 Fed. Reg. 15421 (2024), Friday, March 1, 2024, pages 15011 – 15430. This document is available in HeinOnline’s Federal Register Library. Imposed new restrictions on foreign adversaries’ access to U.S. user data.

Security vs. Free Speech and Economic Impact

Supporters of the ban argue that it aligns with past actions against foreign-controlled technology and is necessary to protect national security. Critics, however, argue that banning a social media platform used by millions could set a dangerous precedent for government intervention in digital spaces, raising First Amendment concerns about free speech and access to information. Additionally, critics highlight the economic consequences, particularly for content creators, small businesses, and advertisers who rely on TikTok for marketing and revenue. They contend that a more effective solution could include more comprehensive data security legislation that applies to all social media platforms, modeled after the European Union’s GDPR.

What’s Next for TikTok?

As the 75-day delay unfolds, set to expire April 5, 2025, several possible outcomes remain on the table, each carrying legal, economic, and policy implications. Possible outcomes include:

• ByteDance divests TikTok’s U.S. operations, allowing the platform to continue under new ownership.
• Congress revisits PAFACA, adjusting its provisions or extending the divestiture timeline.
• Legal challenges continue, potentially shaping future rulings on government intervention in digital platforms, foreign ownership regulations, and national security-based restrictions on technology.
• The ban is enforced, forcing U.S. users to migrate to other platforms beginning April 5, 2025.

Beyond TikTok, This Raises Broader Questions About the Future of Digital Regulation.

As legal battles continue and policymakers weigh their next steps, the outcome of this debate could shape the future of technology governance, digital rights, and the role of government in regulating global tech platforms. Whether through legislative action, judicial decisions, or market-driven solutions, the coming months will be critical in determining the long-term implications of the TikTok ban and its impact on the broader tech landscape.