Banning TikTok in the U.S. Is Easier Said Than Done

Can the U.S. government ban TikTok?

Possibly. The government has a range of economic powers it could use against TikTok’s core business interests, but efforts to restrict Americans’ access to its content would be more vulnerable to legal challenges and enforcement difficulties.

“When the government needs to expand its powers, especially beginning in the 20th century, it has frequently justified its actions by invoking its authorities to direct national commerce,” said Andrew Burt, a lawyer at the firm BNH.AI, which specializes in artificial intelligence and data governance.

Those could include ordering TikTok’s parent company, ByteDance Ltd., to sell the app to a non-Chinese company. But if TikTok relocated its operations entirely overseas and continued to operate, the U.S. would be plunged into the uncharted legal territory of having to act not against the app’s corporate assets, but against its users.

Would it take a new law to ban TikTok?

In 2020, then-President

Donald Trump

tried to ban TikTok by executive order, only to have two federal judges express doubt that the president had the power to do so. The issue was never fully resolved after the Biden administration withdrew Mr. Trump’s order while continuing to scrutinize the app.

The U.S. has previously banned equipment from Chinese telecommunications firms and camera makers over national-security concerns, but current law doesn’t provide a straightforward formula for banning social-media software.

The main hurdle against the president acting alone is that his commerce power under the 1977 International Emergency Economic Powers Act (IEEPA) doesn’t cover the regulation of “informational materials”—an exception built in to allow the free exchange of cultural products between the U.S. and communist countries. The president also isn’t permitted to regulate “personal communication” under the law, a term that could also arguably apply to some elements of TikTok’s service, such as the app’s direct-messaging feature.

Several proposals floating around Congress would give the president more explicit power to ban apps. One, a Republican-authored House bill called the Data Act, specifically names TikTok as an app of concern and amends IEEPA to explicitly give the president the power to ban certain software. Another is the bipartisan Restrict Act that has been introduced in the Senate, which gives the president the power to take action against an array of foreign software and services from U.S. adversaries. The White House has said it supports the Restrict Act.

How would a ban play out?

Under its well-recognized economic powers, the U.S. could make it nearly impossible for companies that do business in the U.S. to transact with TikTok, depriving the company of access to banks, cloud service providers and advertisers. That would destroy billions of dollars of economic value for the app and could imperil its ability to operate as a business.

The U.S. could make it very difficult for TikTok to partner with its current U.S. cloud services provider,

Oracle Corp.

, forcing the company to find a new overseas partner if it wanted to continue to host content, for example.

The government could also force

Apple Inc.

and Google to delist the app from their popular app stores, a measure that has little known precedent in the U.S. According to transparency reports that Apple has published since 2018, it has never removed an app in response to a demand from the U.S. government. Google didn’t respond to a request for comment. Apple and Google do remove apps upon legal request from other governments.

An app store ban wouldn’t affect the software already installed on tens of millions of American phones, though it could imperil the ability of current users to receive updates and patches and degrade the functionality of TikTok over time. Phones running the Android operating system permit the installation of apps from outside the official app stores, meaning that TikTok could still potentially gain new U.S. users even if it was blacklisted from the Google app store in the U.S.

Could U.S. users still access TikTok if its operations moved overseas?

A TikTok that hosted content on servers beyond American shores and without American advertising dollars would be difficult for U.S. officials to block completely. TikTok’s video content is accessible not only on its app, but also on the web domain TikTok.com, and its most popular viral videos are often embedded on many other websites.

U.S. internet service providers currently don’t block access even to terrorist content and hate websites, nor are U.S. citizens prohibited from accessing foreign propaganda or social-media sites hosted on the web. Countrywide firewalls blocking certain websites are technologically possible—authoritarian governments such as Iran, China and Russia do it. That isn’t a step the U.S. has ever taken, said Mark Rasch, a former Justice Department prosecutor who specialized in computer crimes and is now in private practice, adding that he knew of no legal authority Washington could invoke to do so.

The U.S. government usually takes action against a web domain only with court authority and only when it is involved in illegal activity such as hacking, drug dealing or hosting child sexual-abuse material, Mr. Rasch said. In other instances, courts have issued orders against websites hosting pirated content. But nothing like banning access to a popular web service has ever been tried, experts say.

What about the First Amendment? Isn’t TikTok speech?

In the face of any ban, TikTok and its users would likely say their First Amendment rights are being restricted. Those rights extend, social-media services such as

Facebook

have argued, even to efforts to regulate content or tweak algorithms.

Civil-society groups including the American Civil Liberties Union have argued that giving the president the power to ban apps is a restraint on free speech and open discourse. And many Americans have built audiences and are making money on the platform; their speech rights would be implicated, too, the ACLU argues.

“The fact of the matter is that TikTok has created careers for people,” said Jenna Leventoff, senior policy counsel at the ACLU. “There’s a sense of community there that would be difficult to just recreate super easily. So I don’t know that you can just substitute TikTok for any other platform for your speech.”

It isn’t clear how courts would rule in any such case. At least one federal judge sided with users of the Chinese app

WeChat

when they challenged a ban by Mr. Trump in 2020. WeChat is widely used by Chinese Americans to communicate with family abroad. A court found that banning the app violated the First Amendment rights of users and that forcing them to use an alternative platform wasn’t an acceptable substitute. The ban was later lifted by President Biden.

Write to Byron Tau at [email protected]