No matter what TikTok says in its laudatory pop-up messages<\/a>, President-elect Donald Trump cannot simply declare an extension of the TikTok ban deadline and protect American companies that support it from billions of dollars in fines.<\/p>\n<\/div>\n Trump seems to want TikTok available for his inauguration<\/a> on Monday, because \u201cAmericans deserve\u201d to see the event. But TikTok is officially banned starting today until it sells to a non-Chinese company, and there\u2019s no deal in sight. Flouting that ban could get Apple and Google\u2019s app stores, as well as service providers Akamai and Oracle, dinged for potentially $850 billion in penalties. Despite all this, Trump has reportedly assured companies they won\u2019t face these fines if they let TikTok keep operating. Now, the question is simple: will Trump-friendly companies<\/a> risk breaking the law to make the president happy?<\/p>\n<\/div>\n TikTok\u2019s status has been uncertain since last night. President Joe Biden said he wouldn\u2019t enforce the law on the last day of his presidency, but TikTok declared it would go dark anyway. App stores removed it in accordance with the law. Then, Trump promised he\u2019d extend the deadline, telling companies they wouldn\u2019t face penalties \u2014 and TikTok promptly came back online with a thank-you note to the President-elect. The problem is that it\u2019s not clear Trump can do what he\u2019s promised.<\/p>\n<\/div>\n Congress passed a law directly demanding TikTok divest itself<\/a> from parent company ByteDance or face a ban. It included an option for President Joe Biden to extend the deadline by 90 days if a deal was announced; Biden declined to use it. There are only a few options for TikTok to legally keep operating now. The app could be sold and come back under different ownership. Congress could pass a new law extending the deadline or ending the ban. Or Trump could try to extend it by certifying a deal to change TikTok\u2019s ownership is in place \u2014 but unfortunately for him, he can\u2019t simply sign an order saying a law no longer exists.<\/p>\n<\/div>\n This puts companies in a legal bind. TikTok\u2019s US service providers risk $5,000 in penalties per person who uses their service to access the app. The government told the Supreme Court it could be enforced up to five years later, so they could be penalized under a future president (or Trump himself).<\/p>\n<\/div>\n Trump needs to take action in a way that convinces them this won\u2019t happen. Perhaps his best option would be certifying to Congress that TikTok has agreed to sell, then attempting to trigger the 90-day extension Biden didn\u2019t use. (It\u2019s debatable whether this can be done after the ban kicks in, but legal experts say it\u2019s at least possible to argue for it.) \u201cTo be clear, he would be lying\u201d about the deal, says University of Minnesota Law School professor Alan\u00a0Rozenshtein. \u201cHe\u2019d be lying to Congress, and that would be Congress\u2019 problem. But he would still have certified, and so until the court would declare that that certification is invalid, I think the companies would be safe.\u201d<\/p>\n<\/div>\n \u201cThis would suggest that a post on Truth Social is enough for some companies to proceed to voluntarily violate federal law\u201d<\/p>\n<\/div>\n<\/div>\n For now, however, Trump\u2019s assurances that it\u2019s safe to support TikTok are legally flimsy. TikTok began coming back online in the US mid-day Sunday, suggesting its service provider Oracle might be relying on Trump\u2019s assurance on Truth Social<\/a> that he\u2019d delay the ban, though the company has not confirmed or commented. \u201cThis would suggest that a post on Truth Social is enough for some companies to proceed to voluntarily violate federal law,\u201d says Bloomberg Intelligence litigation analyst Matt Schettenhelm. \u201cThat\u2019s in an astonishing development in my view, if that\u2019s what\u2019s happening.\u201d <\/p>\n<\/div>\n If companies are<\/em> breaking the law, they would likely have a strong due process defense given Trump\u2019s promises not to enforce it, Schettenhelm says. But \u201canytime you\u2019re voluntarily violating the federal law, you\u2019re forcing yourself into a fight over the issue,\u201d he says. \u201cYes, it\u2019s probably a winnable fight, but when it\u2019s a fight over $850 billion in exposure,\u00a0it\u2019s probably better to not have to get into that fight at all.\u201d<\/p>\n<\/div>\n Rozenshtein says the move could invite shareholder lawsuits \u2014 something that Senate Intelligence Committee Chair Tom Cotton (R-AR) warned of<\/a>, even though Trump encouraged service providers to bring TikTok back online in time for his inauguration.<\/p>\n<\/div>\n \u201cIt\u2019s probably a winnable fight, but when it\u2019s a fight over $850 billion in exposure, it\u2019s probably better to not have to get into that fight at all\u201d<\/p>\n<\/div>\n<\/div>\n That said, <\/strong>Trump\u2019s power <\/strong>could encourage some companies to take calculated risks. \u201cIt\u2019s certainly in the interest of these companies to to curry favor with the new administration and I guess it\u2019s conceivable that even $850 billion of liability exposure and even voluntarily violating a new federal law might be worth it to some companies,\u201d Schettenhelm says. \u201cBut you would not typically think that\u2019s a calculation that makes sense.\u201d<\/p>\n<\/div>\n If Trump tries to overrule Congress in a way that\u2019s illegal, someone with standing to sue could challenge him in court. Who might this be? One option is TikTok users who supported the ban and fear the Chinese government getting their data. \u201cOf course, the courts might say, \u2018well, then don\u2019t use TikTok,\u2019\u201d Rozenshtein points out. A competitor like Meta also might be able to bring a claim, he says. Or a service provider like Apple or Google could try to get a court to clarify their legal liability, without actually challenging the arrangement. But given tech companies\u2019 attempts to avoid antagonizing Trump, that route seems unlikely.<\/p>\n<\/div>\n If TikTok\u2019s service providers really want legal cover, then short of a true qualified divestiture \u2014 which would take time to hash out, if China even agrees to sell the app<\/a> \u2014 their best option is Congress. That still seems like a long shot, especially on short notice. But now that Senate Minority Leader Chuck Schumer (D-NY) endorses an extension, Schettenhelm says, \u201cit starts to be conceivable that maybe Congress would agree to at least delay the ban or push it back. That would be the most legally sound way to do this.\u201d<\/p>\n<\/div>\n<\/div>\n