University of St. Thomas Law Journal

PAFACA: TikTok’s Ticking Time Bomb

Abigail Moser*

TikTok Inc. is among the most popular social media networks in the world.1 As of 2024, TikTok had over 1.5 billion active users.2 A significant portion of those users are American—TikTok has 170 million U.S. users.3 TikTok Shop also gained a large market in the United States, outperforming other e-commerce options and boosting sales through influencer content.4 Consequently, TikTok is ubiquitous in American popular culture.5 Despite its immense popularity, the future of TikTok in the United States is uncertain as it faces a federal ban.

I. The Act

On April 24, 2024, former President Joe Biden signed into law the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA).6 The Act targets TikTok and its Chinese parent company, ByteDance Ltd.7 The Bill was introduced by Rep. Mike Gallagher (R-WI),8 though it drew bipartisan support.9 PAFACA was motivated by national security concerns, as TikTok has Chinese ownership, and People’s Republic of China (PRC) is among United States’ foreign adversaries.10 U.S. lawmakers fear that sensitive user information is collected by the PRC, including device information (e.g., IP addresses), location data, and facial or voice recognition data.11 By obtaining this data, the PRC could engage in intelligence-gathering operations against the United States,12 though it remains unclear whether evidence indicates that ByteDance hands over such data to the PRC for adversarial purposes.13 What is certain, however, is that TikTok and ByteDance have been under investigation by the Department of Justice, the Federal Bureau of Investigation, and the Federal Trade Commission.14

In order to combat these perceived national security threats, the Act provides that TikTok must be divested to a company which is not “controlled by a foreign adversary” or it will be federally banned.15 The Act imposed a deadline—January 19, 2025—for ByteDance to sell TikTok or face a ban,16 though the deadline has been extended by President Trump.17 ByteDance has taken no public steps to sell the company,18 stating that the sale would be impossible.19 ByteDance’s noncompliance with the Act has made TikTok’s ban imminent, absent TikTok’s purchase by an eligible buyer.

II. The Legal Challenges

Following the passage of this Act, TikTok and ByteDance took swift legal action. On May 7, 2024, ByteDance and TikTok filed a petition for review with the Court of Appeals for the District of Columbia.20 Petitioners alleged that PAFACA violates the U.S. Constitution, including violations of freedom of speech and expression, an unconstitutional bill of attainder, violations of equal protection, and an unconstitutional taking.21 Pending ongoing litigation, Petitioners appealed to the U.S. Supreme Court, seeking an injunction delaying enforcement of the Act.22

On December 6, 2024, a panel of three judges in the D.C. Circuit unanimously upheld PAFACA and rejected Petitioners’ claims that PAFACA violates the Constitution.23 The court reasoned that the Act properly served compelling governmental interests of national security and outweighed any First Amendment interests.24 Following this decision, the U.S. Supreme Court granted TikTok and ByteDance’s petition for review,25 consolidating the case with two related lawsuits.26 This successful appeal represented a major victory for TikTok and a last-ditch effort to prevent a ban. Oral arguments were held on January 10, 2025—days before the TikTok ban took effect.27 The Supreme Court only considered arguments regarding the constitutionality of PAFACA under the free speech clause of the First Amendment.28

On January 17, 2025, the Supreme Court unanimously upheld PAFACA, rejecting the petitioners’ First Amendment challenges.29 In its per curiam opinion, the Court applied intermediate scrutiny,30 recognizing that while the Act implicated First Amendment interests, it was justified by significant government concerns.31 Under this framework, the Court determined that the national security risks posed by TikTok’s data collection practices and its ties to a foreign adversary constituted an important governmental objective.32 The Court further reasoned that the restrictions imposed by PAFACA were narrowly tailored to address these concerns without unduly burdening free expression.33 In bolstering its decision, the Court also emphasized the Act’s overwhelming bipartisan support in Congress, noting that its passage reflected the broad consensus on the need to mitigate possible foreign influence over U.S. TikTok users.34

III. The Change in Administration

During his first term in office, President Donald Trump attempted to ban TikTok;35 now, he vows to save it.36 Just over a month ahead of the January 19 deadline, President Trump met with TikTok CEO, Shou Chew.37 Shortly thereafter, President Trump filed an amicus brief asking the Supreme Court to delay the TikTok ban until a few weeks after he takes office.38 Leading up to oral arguments and following TikTok’s loss before the Supreme Court, President Trump continued in his pledge to save TikTok.39 Before taking office, he announced his intent to issue an executive order extending the PAFACA deadline.40 Interestingly, TikTok began to display a message thanking President Trump on January 19, despite President Trump having not taken office and necessarily not issuing any enforceable executive orders.41 Upon taking office, however, President Trump quickly delivered on his promise to delay the TikTok ban.42 The new deadline imposed by the extension is April 5, 2025, or an additional 75 days.43

IV. The Possible Outcomes

At present, there is no long-term solution to avoid a TikTok ban. President Trump has identified a laundry list of potential buyers,44 yet TikTok continues to assert the impossibility of a sale.45 Given President Trump’s onslaught of executive orders,46 Trump may issue another order attempting to repeal PAFACA, though such an order would likely face legal challenges.47 Regardless of the outcome, the decision will certainly impact the status of TikTok in the United States and inform subsequent litigation in similar matters. As for TikTok creators—particularly, those creators who make TikTok content for a living—a U.S. ban could be economically devastating.48 And for those who simply enjoy the app (myself included), we await the outcome with anticipation.

* Abigail Moser, J.D. Candidate, University of St. Thomas School of Law Class of 2025 (Senior Editor).

  1. Shelley Walsh, The Top 10 Social Media Sites & Platforms, Search Engine J., (Sept. 18, 2024), https://www.searchenginejournal.com/social-media/social-media-platforms/ [https://perma.cc/59JA-SKY4]. ↩︎
  2. Stacy Jo Dixon, Most Popular Social Networks Worldwide as of April 2024, by Number of Monthly Active Users, Statista (July 10, 2024), https://www.statista.com/statistics/272014/global-social-networks-ranked-by-number-of-users/ [https://perma.cc/EG4B-LJC7]. ↩︎
  3. Sapna Maheshwari & David McCabe, Congress Passed a Bill That Could Ban TikTok. Now Comes the Hard Part, The N.Y. Times (Apr. 23, 2024), https://www.nytimes.com/2024/04/23/technology/bytedance-tiktok-ban-bill.html [https://perma.cc/XE74-4SAA]. ↩︎
  4. Arriana McLymore & Sheila Dang, US Spending on TikTok Shop Gains as TikTok Faces Threat of Ban, Reuters (Dec. 7, 2024, 7:05 PM CST), https://www.reuters.com/technology/us-spending-tiktok-shop-gains-tiktok-faces-threat-ban-data-shows-2024-12-07/ [https://perma.cc/7LFD-QUJJ] (describing how TikTok Shop outsold both Temu and Shein in the 7 days preceding Cyber Monday in November 2024). ↩︎
  5. See, e.g., Sapna Maheshwari et al., Love, Hate or Fear It, TikTok Has Changed America, The N.Y. Times (Apr. 19, 2024), https://www.nytimes.com/interactive/2024/04/18/business/media/tiktok-ban-american-culture.html [https://perma.cc/954N-29SN] (discussing the way TikTok influences entertainment, politics, food, fashion, shopping, jobs, marketing, and other culturally-significant subjects). ↩︎
  6. Maheshwari & McCabe, supra note 3 (citing Protecting Americans from Foreign Adversary Controlled Applications Act, Pub. L. No. 118-50, 138 Stat. 932 (2024)). ↩︎
  7. Protecting Americans from Foreign Adversary Controlled Applications Act, Pub. L. No. 118-50, Div. H., 138 Stat. 955 (2024) (“An act [t]o protect the national security of the United States from the threat posed by foreign adversary controlled applications, such as TikTok . . . and any other application . . . under the control of ByteDance Ltd.”). ↩︎
  8. Protecting Americans from Foreign Adversary Controlled Applications Act, H.R. 7521, 118th Cong. (2024). ↩︎
  9. The House bill passed 352-65 (yeas-nays), with Republicans split 197-15 and Democrats split 155-50. Roll Call 86, Bill Number: H.R. 7521, CLERK (Mar. 13, 2024, 10:33 AM) [hereinafter Role Call], https://clerk.house.gov/Votes/202486 [https://perma.cc/9X3B-A53H]. The bill was signed into law by Democratic President Biden. Maheshwari & McCabe, supra note 3. ↩︎
  10. Sapna Maheshwari & Amanda Holpuch, Why TikTok Faces a U.S. Ban, and What’s Next?, The N.Y. Times (Dec. 6, 2024), https://www.nytimes.com/article/tiktok-ban.html [https://perma.cc/MJL7-CCVY]. ↩︎
  11. Privacy Policy, TikTok (Aug. 19, 2024), https://www.tiktok.com/legal/page/us/privacy-policy/en [https://perma.cc/6RQP-W77R]. ↩︎
  12. Maheshwari & Holpuch, supra note 10. ↩︎
  13. James Andrew Lewis, TikTok and National Security, CSIS (Mar. 13, 2024), https://www.csis.org/analysis/tiktok-and-national-security#:~:text=Possible%20explanations%20for%20China’s%20data,that%20China%20has%20done
    %20this [https://perma.cc/LZR9-7WAU] (emphasizing the lack of public evidence that TikTok user data is harvested as Chinese intelligence). ↩︎
  14. See, e.g., Haleluya Hadero & Eric Tucker, DOJ Accuses TikTok of Collecting U.S. User Views on Issues like Abortion and Gun Control, PBS News (July 27, 2024, 2:43 PM EST), https://www.pbs.org/newshour/nation/doj-accuses-tiktok-of-collecting-u-s-user-views-on-issues-like-abortion-and-gun-control [https://perma.cc/ZBC4-2S7K] (discussing the DOJ investigation of data collection); see also Press Release, Democrats, Select Committee on the CCP, Select Committee Requests FBI Briefing on TikTok & ByteDance (Dec. 7, 2023) (on file with author) (discussing the FBI investigation of data collection); see also Haleluya Hadero, TikTok Is Under Investigation by the FTC over Data Practices and Could Face a Lawsuit, AP News (Mar. 27, 2024, 11:57 AM CST), https://apnews.com/article/tiktok-ftc-investigation-china-data-e91e02db5c4f3f7d5836ecafedbf4714 [https://perma.cc/WX3T-DFES] (discussing the FTC investigation of data collection). ↩︎
  15. Protecting Americans from Foreign Adversary Controlled Applications Act, Pub. L. No. 118-50, Div. H., 138 Stat. 955 (2024). ↩︎
  16. Id. The President may grant a one-time, 90-day extension to this deadline if ByteDance is in the process of selling TikTok on or before January 19, 2025. Id. at § 2(a)(3). ↩︎
  17. Exec. Order No. 14099, 90 Fed. Reg. 4321 (Jan. 20, 2025). ↩︎
  18. Lauren Hirsch & Sapna Maheshwari, How a Sale of TikTok Would Work and Who Might Buy It, The N.Y. Times (Feb. 4, 2025), https://www.nytimes.com/2025/02/04/business/media/tiktok-sale-who-could-buy.html#:~:text=ByteDance%2C%20TikTok’s%20owner%2C%20has%20said,interested%20in%20a%20sale%2C%20either [https://perma.cc/SX73-NXHD]. ↩︎
  19. Maheshwari & Holpuch, supra note 10. ↩︎
  20. See generally Petition for Review of Constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act,TikTok Inc. v. Garland, No. 24-1113 (May 7, 2024), 2024 WL 2056803. ↩︎
  21. Id. at 30–65. ↩︎
  22. See generally Emergency Application for Injunction Pending Supreme Court Review, TikTok Inc. v.Garland, No. 24A587 (Nov. 16, 2024), 2024 WL 5146384. ↩︎
  23. See generally TikTok Inc. v. Garland, 122 F.4th 930 (D.C. Cir. 2024). ↩︎
  24. Id. at 952–53. ↩︎
  25. Adam Liptak & Sapna Maheshwari, Supreme Court Fast-Tracks TikTok Case in Face of Jan. 19 Deadline, The N.Y. Times (Dec. 18, 2024), https://www.nytimes.com/2024/12/18/us/politics/supreme-court-tiktok-ban.html [https://perma.cc/AE8C-Y74Q]. ↩︎
  26. Brian Firebaugh and seven additional TikTok creators filed suit against U.S. Attorney General Merrick Garland in May 2024. See Taylor Lorenz & Drew Harwell, TikTok Creators Sue U.S. Government over Potential Ban, The Wash. Post (May 14, 2024), https://www.washingtonpost.com/technology/2024/05/14/tiktok-creators-lawsuit-ban/ [https://perma.cc/6YL4-GALK]. In June 2024, the TikTok-based, right-wing nonprofit BASED Politics Inc. also filed suit against AG Garland. Landon Mion, Right Wing TikTokers Sue Biden Admin, Challenging TikTok Action on First Amendment Grounds: ‘A Ban on Speech’, FOX Business, (June 6, 2024, 6:40 AM EDT), https://www.foxbusiness.com/politics/right-wing-tiktokers-sue-biden-admin-challenging-tiktok-ban-first-amendment-grounds-ban-speech [https://perma.cc/5LMY-BKTA]. These eight creators, BASED Politics, and TikTok and ByteDance were consolidated as petitioners in the case before the Supreme Court. Liptak & Maheshwari, supra note 24. ↩︎
  27. See Liptak & Maheshwari, supra note 24. ↩︎
  28. See Liptak & Maheshwari, supra note 24. ↩︎
  29. TikTok, Inc. v. Garland, 604 U.S. ___ at 1 (2025). ↩︎
  30. Id. at 13. ↩︎
  31. Id. ↩︎
  32. Id. at 19. ↩︎
  33. Id. at 16. ↩︎
  34. Id. at 19. ↩︎
  35. In August 2020, President Trump issued an executive order that effectively banned TikTok, though the Order was later struck down by two federal judges. Exec. Ord. No. 13942, Addressing the Threat Posed by TikTok, and Taking Additional Steps to Address the National Emergency With Respect to the Information and Communications Technology and Services Supply Chain, 85 Fed. Reg. 48637 (Aug. 6, 2020); see generally TikTok Inc. v. Trump, 490 F. Supp. 3d 73 (D.D.C. 2020) and TikTok Inc. v. Trump, 507 F. Supp. 3d 92 (D.D.C. 2020). ↩︎
  36. Haleluya Hadero, Trump Has Promised to ‘Save TikTok’. What Happens Next Is Less Clear, AP News (Nov. 12, 2024, 6:29 PM CST), https://apnews.com/article/trump-tiktok-ban-congress-president-282d8df7b91dce270316509badd39978 [https://perma.cc/SMF4-J8UF]. ↩︎
  37. Fin Gómez & Caitlin Yilek, TikTok CEO Meets with Trump Ahead of January Ban, CBS NEWS (Dec. 16, 2024, 6:05 PM EST), https://www.cbsnews.com/news/tiktok-ceo-trump-meeting-ban/ [https://perma.cc/8DT3-WL7E]. ↩︎
  38. See generally Brief of President Donald J. Trump as Amicus Curiae Supporting Neither Party, TikTok, Inc. v. Garland, Firebaugh v. Garland, Nos. 24-656, 24-657 (Dec. 27, 2024). ↩︎
  39. Jill Colvin & Barbara Ortutay, From Backing a Ban to Being Hailed As a Savior: Inside Trump’s TikTok Shift, AP News (Jan. 19, 2025, 9:22 PM CST), https://apnews.com/article/trump-tiktok-ban-da11df6d59c17e2c17eea40c4042386d [https://perma.cc/2JPJ-C7FU]. ↩︎
  40. Valerie Plesch, Trump Says He’ll Issue an Executive Order Monday Delaying U.S. TikTok Ban¸ NBC News (Jan. 19, 2025, 1:05 PM CST), https://www.nbcnews.com/politics/donald-trump/trump-executive-order-tiktok-us-rcna188313 [https://perma.cc/59FW-LGTA]. ↩︎
  41. David Shepardson, TikTok Restores U.S. Service After Trump Says, “We Have To Save It”, Reuters (Jan. 20, 2025, 1:53 AM CST), https://www.reuters.com/technology/tiktok-goes-dark-us-users-trump-says-save-tiktok-2025-01-19/ [https://perma.cc/J9JA-SEDY]. ↩︎
  42. Exec. Order No. 14099, 90 Fed. Reg. 4321 (Jan. 20, 2025). ↩︎
  43. Id. ↩︎
  44. Hirsch & Maheshwari, supra note 18. ↩︎
  45. Maheshwari & Holpuch, supra note 10. ↩︎
  46. See, e.g., Domenico Montanaro, Christina Gatti, Camila Domonoske, & Andrea Hsu, All the Executive Orders Trump Has Signed After 1 Week in Office (Jan. 28, 2025, 8:27 AM ET), https://www.npr.org/2025/01/28/nx-s1-5276293/trump-executive-orders [https://perma.cc/NY5A-QA84]. ↩︎
  47. The lawmaking power belongs to Congress alone. Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579, 589 (1952) (citing U.S. Const. art. I, § 8). ↩︎
  48. See, e.g., Bobby Allyn, What a TikTok Ban Would Mean for Creators Who Rely on the Platform to Make a Living, NPR (May 6, 2024, 4:59 PM ET), https://www.npr.org/2024/05/06/1249425866/what-a-tiktok-ban-would-mean-for-creators-who-rely-on-the-platform-to-make-a-liv [https://perma.cc/3B7F-9EJ3]. ↩︎

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