Months after President Joe Biden signed the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACAA) into law, its fate now faces potential upheaval with Donald Trump’s reelection. The law, which aims to sever Chinese ownership of TikTok, may encounter challenges if the former president seeks to alter its provisions after his inauguration.
The PAFACAA law, signed in April, requires ByteDance, the Chinese parent company of TikTok, to either divest its U.S. operations to an American entity or face a ban on the app’s operations in the United States. President Biden set a hard deadline of January 19, one day before Trump’s scheduled inauguration, for ByteDance to comply.
If ByteDance fails to meet the requirements, TikTok could be banned nationwide. However, the company is actively contesting the law in a case before the U.S. Court of Appeals for the District of Columbia. The court’s decision, which could arrive before or after Trump takes office, may determine whether the law remains enforceable.
On the campaign trail, Trump suggested he might intervene to save TikTok. In a post on his social media platform, Truth Social, Trump claimed, “We’re not doing anything with TikTok, but the other side is going to close it up, so if you like TikTok, go out and vote for Trump.” The statement indicated a potential pivot from his earlier administration’s aggressive stance against Chinese-owned tech platforms.
This apparent reversal poses a political dilemma for Trump. During his first term, he positioned himself as a staunch protector of American interests, emphasizing the risks posed by Chinese influence on U.S. industries. Yet his recent remarks suggest a willingness to soften his stance on TikTok, which could alienate some of his core supporters.
Trump’s chances of modifying or overturning the PAFACAA law have increased with Republican victories securing control of both chambers of Congress. With a cooperative legislature, Trump could push for legislative changes to the law or even repeal it entirely.
Karoline Leavitt, a spokesperson for the Trump-Vance transition team, affirmed that the president-elect is committed to fulfilling his campaign promises. “The American people reelected President Trump by a resounding margin giving him a mandate to implement the promises he made on the campaign trail. He will deliver,” Leavitt told Yahoo Finance when asked about TikTok.
ByteDance is not waiting for political shifts to challenge the law. In its case before the D.C. Court of Appeals, the company argues that the PAFACAA law is unconstitutional. ByteDance contends that the law violates:
- First Amendment Protections: TikTok, as a platform for free expression, claims the law infringes on its users’ rights to free speech.
- Fifth Amendment’s Takings Clause: ByteDance argues the forced divestment amounts to an unconstitutional seizure of private property without just compensation.
- Bills of Attainder Protections: The company asserts the law unfairly singles out ByteDance and TikTok for punishment without a fair trial.
The Justice Department counters these claims by emphasizing national security concerns. Government attorneys argue that the law is a necessary measure to protect U.S. interests from potential espionage or data misuse by a foreign adversary.
The PAFACAA law received broad bipartisan support when enacted, with lawmakers pointing to the potential dangers of Chinese government influence over TikTok. Fifty-five members of Congress recently urged the appeals court to uphold the law, citing national security as a paramount concern.
FBI Director Christopher Wray has testified to the Senate Intelligence Committee that TikTok represents a significant security risk. He warned that the Chinese government could compel ByteDance to provide access to U.S. user data, which could be exploited for surveillance or disinformation campaigns.
TikTok CEO Shou Zi Chew has pushed back against these allegations, asserting that ByteDance is a private company not controlled by the Chinese government. “ByteDance is not owned or controlled by the Chinese government,” Chew told Congress earlier this year. He highlighted ongoing efforts to ensure U.S. user data is stored domestically and managed by U.S.-based personnel under Project Texas, a $1.5 billion data security initiative.
The legal and political future of TikTok remains uncertain. The D.C. appeals court is expected to rule on ByteDance’s lawsuit by December 6. Regardless of the outcome, the decision is likely to be appealed to the Supreme Court, which has a conservative majority. A ruling in favor of ByteDance could invalidate the PAFACAA law, giving TikTok a reprieve. Conversely, an unfavorable ruling for ByteDance could force the company to divest or cease operations in the U.S.
If Trump pursues changes to the law once in office, the app’s future may hinge on political negotiations. Any legislative action to modify or repeal PAFACAA would require cooperation from Congress, where Republicans now hold a majority.
The TikTok controversy underscores the broader tensions between the U.S. and China over technology and data security. During Trump’s first term, his administration imposed tariffs and restrictions on Chinese companies, including Huawei and ZTE, citing similar national security concerns.
President Biden has largely continued this approach, maintaining tariffs and expanding restrictions on Chinese tech firms. The PAFACAA law is seen as part of a broader effort to safeguard U.S. data and intellectual property.
However, a potential policy reversal by Trump could signal a shift in U.S. strategy, with implications for other Chinese-owned companies operating in the U.S. market. Critics argue that softening restrictions could weaken U.S. leverage in addressing China’s growing technological and economic influence.
TikTok’s vast popularity in the U.S., particularly among younger users, adds another layer of complexity. The app boasts over 150 million active users in the country, making it a significant cultural and economic force. Many users have voiced strong opposition to a potential ban, arguing that it would stifle creativity and entrepreneurship.
Some analysts believe Trump’s stance on TikTok could be a calculated move to appeal to younger voters who use the platform. By framing himself as a savior of TikTok, Trump could attempt to broaden his base and attract a demographic that has traditionally leaned Democratic.
