From expedited Constitutional challenges to an exodus of self-proclaimed “TikTok Refugees” to new foreign-owned social media platforms, the past week leading up to the Jan. 19, 2025, deadline for the TikTok Ban has been a whirlwind of legal and political activity. And while much of the drama and interest in this weekend’s deadline will likely fade over time, there are several enduring issues that emerged from TikTok’s ongoing legal challenges.

SCOTUS Upholds the Protecting Americans from Foreign Adversary Controlled Applications Act

On Friday, Jan. 17, 2025, the United States Supreme Court unanimously upheld the Protecting Americans from Foreign Adversary Controlled Applications Act (the “Act”) – more commonly referred to as the TikTok Ban – and rejected TikTok’s arguments that the Act violated the First Amendment. While the ultimate fate of TikTok’s U.S. operations remains uncertain, the Supreme Court’s ruling has clear implications for digital content and marketing professionals and their selection of platform strategies going forward.

In a per curiam opinion published today, the Supreme Court recognized its long-standing tradition of exercising caution when deciding cases that involve “new technologies with transformative capabilities[,]” and resolved the narrow question of the tension between the First Amendment and the potential risks associated with foreign adversary control over data collection from U.S. citizens. 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, which explicitly meant TikTok and its parent company, ByteDance Ltd. The Supreme Court also acknowledged that the Act applies to any application that is both “(1) operated by a ‘covered company’ that is ’controlled by a foreign adversary,’ ” which is any country subject to the reporting requirements of 10 U.S.C. § 4872 – which currently includes China, Russia, Iran, and North Korea – and “ ’(2) determined by the President to present a significant threat to the national security of the United States,’ following a public notice and reporting process.”

Noting the “striking bipartisan support” for the Act, the Supreme Court’s narrow decision reflects a growing concern among policymakers and courts regarding the national security implications of foreign-owned technology companies operating in the United States. Beyond the immediate impact on TikTok and its users, this ruling has broader implications for the tech industry and the relationship between the U.S. government and foreign-owned companies. It signals a willingness by the Court to uphold government restrictions on technology companies, particularly those with ties to countries considered foreign adversaries when national security concerns can be credibly invoked. Since the Act identified TikTok by name, it is just the first company to be subject to the ban; however, the Act provides a broader framework that could apply to other platforms operating in the United States. Indeed, in the days leading up to the Jan. 19 deadline for the TikTok ban, many U.S. users rapidly adopted another Chinese app, RedNote, which could very well be subject to the Act.

Marketing and advertising stakeholders should particularly take note of last week’s Supreme Court decision because of a challenge built into the Act: While content creators and marketers benefit from being early adopters of emerging platforms, including international platforms, the Act comes into play when an application reaches a critical mass of more than 1,000,000 monthly active users. In other words, the Act adds another layer of complexity for content creators as they consider building their presence and following on new applications. Once an application becomes sufficiently popular, it could be shut down if it is deemed controlled by a foreign adversary. Likewise, marketing and advertising agencies should more carefully scrutinize the risk that a platform could be shut down under the Act, frustrating ongoing agreements or campaigns.

TikTok’s Brief Shutdown and President Trump’s Executive Order

After the Supreme Court upheld the Act, TikTok temporarily shut down access for U.S. users at 10:30 p.m. ET on Saturday, Jan. 18, 2025, informing users that “A law banning TikTok has been enacted in the U.S. Unfortunately, that means you can’t use TikTok for now.” The message also noted that “We are fortunate that President Trump has indicated that he will work with us on a solution to reinstate TikTok once he takes office. Please stay tuned!” By Sunday afternoon, TikTok restored access to U.S. citizens, crediting assurances from President Trump.

On Jan. 20, 2025, President Trump entered an executive order purporting to extend the federal ban on TikTok for 75 days and offering a liability shield to companies assisting TikTok in resuming its U.S. operations during the extended period. Despite the executive order and restored access to TikTok, not all companies are comfortable relying on the executive order, as some legal experts question its validity and it could be revoked any any time during ongoing negotiations concerning the divestiture of TikTok by ByteDance. In fact, at the time of writing this, both Apple and Google’s app stores are maintaining their ban of ByteDance-owned applications, providing detailed explanations about the fact that the Protecting Americans from Foreign Adversary Controlled Application Acts prohibits them from making apps developed by ByteDance Ltd. and its subsidiaries available for download or updates starting Jan. 19, 2025. Given the Act’s $5,000 fine per user and the stated 170 million U.S. TikTok user base, these companies have over 850 billion reasons to be conservative in their risk management.

While this saga is far from over, it illustrates how the Act can quickly make access to emerging platforms volatile or political. Beyond the question of TikTok’s dependence on a discretionary executive order by President Trump, the Act also delegates the designation of additional “covered company[ies]” to the President. The Supreme Court approved the Act’s general framework for designating new covered companies following a public notice and reporting process under §2(g)(3)(B) of the Act.