TikTok lost the lawsuit,what next for TikTok?

On the evening of December 6, 2024, U.S, the United States Court of Appeals for the District of Columbia Circuit handed down its decision in the TikTok case as scheduled, with ByteDance and TikTok suffering a complete defeat.

The three judges unanimously held that while the forced divestment of TikTok constitutes a significant restriction on freedom of speech, subject to strict scrutiny standards, the severe national security threat posed by TikTok to the United States led them to rule that the 《Protecting Americans from Foreign Adversaries Controlled Application Act》 (PAFACA), passed by the U.S. Congress, is constitutional and valid.

TikTok must complete the divestment by January 19, 2025, or its service providers may face penalties of up to $850 billion.

SO What’s Next For TikTok?

1.Legal Options: Theoretical Possibility of Appeal Remains

The United States Court of Appeals for the District of Columbia Circuit, which heard this case, is originally a court of second instance. Generally, federal litigation in the United States proceeds through a district court at the first instance and then to a court of appeals at the second instance. However, when enacting the PAFACA bill, in order to avoid prolonged litigation processes, it was explicitly stipulated that lawsuits related to the validity of the bill would be directly adjudicated by the court of appeals, effectively depriving TikTok of its right to a first-instance trial.

After the defeat at the Court of Appeals, TikTok theoretically still has the right to appeal to the United States Supreme Court. However, whether the Supreme Court will accept the case depends entirely on the discretion of the Justices. The Supreme Court of the United States selects around 100 cases with significant legal implications to adjudicate from over 7,000 petitions it receives each year. Even if TikTok files an appeal, there is a great deal of uncertainty as to whether the Supreme Court will take up the case.

Furthermore, even if the United States Supreme Court accepts the appeal, it will not affect the continued enforcement of the PAFACA Act unless it issues a temporary injunction to suspend the implementation of the Act. Requesting the court to issue such an injunction is undoubtedly more challenging than getting it to accept the case.

2.TikTok could seek out a U.S. partner to meet the sell-off conditions.

Last time around, when Donald Trump pushed for TikTok to be sold to a U.S. company back in 2020, an Oracle/Walmart-led consortium was eventually identified as the best local partner for the app. And that sale almost went ahead, until incoming President Biden canceled Trump’s enforced sell-off bill.

Maybe, with Trump returning to power, that deal could be reawakened, though Chinese officials have vowed to oppose any sale of the app, and the bill itself, which it sees as an overreach by the U.S. government.

3.TikTok could also apply for an extension, which would give it an additional 90 days to find a solution that addresses the government’s concerns.

That would mean that TikTok would remain available in the U.S. till at least April next year. That could prove to be a better solution for the app, as Trump would then officially be in power and will have more capacity to assist.

Trump hasn’t actually detailed how he would help TikTok, just that he will save it, while also remarking that he’s now “a big star” in the app. That could be enough motivation for Trump to seek some form of counter for the bill, but then again, many have suggested that his close ties to Elon Musk, who owns a rival social media app, might lessen his push on TikTok’s behalf.

(Note: Musk himself has said that he supports TikTok remaining available in the U.S.)

But right now, the signs are not great for TikTok’s future in the U.S.

So for this moment, it’s down to the Supreme Court, and likely President-elect Trump, to save the app. Otherwise, TikTok will be removed from the U.S. early next year.

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