Author: Mike Scarcella
(Reuters) – U.S. President Donald Trump’s executive order to restore access to TikTok has created a raft of new legal questions for the short-form video platform, along with fresh tensions between the White House, members of Congress who want to ban the platform and the company’s technology caught in the middle.
Legal experts say that despite Trump’s order, service providers and app distributors such as Google (NASDAQ: ) and Apple (NASDAQ: if the Chinese parent company ByteDance does not release the company by January 19.
TikTok remained unavailable for download on Apple and Android devices in the United States early Tuesday afternoon, after Trump signed an executive order on Monday seeking to pause the US ban as one of his first moves as president.
The order directs the US Department of Justice to delay for 75 days any enforcement of the forfeiture law, which was passed by Congress last year.
Trump also ordered the US attorney general to send a letter to service providers such as app store hosts, saying there had been no previous violations of the law and there would be no liability during the review period.
University of Minnesota Law School professor Alan Rozenshtein said Tuesday in an op-ed in the national security publication Lawfare that the 75-day delay in implementing Trump’s executive order “offers minimal security,” however, since courts do not view such pledges as binding.
“Trump could change his mind at any time or selectively enforce against companies that have fallen into political favor,” Rozenshtein wrote.
Google declined to comment, and Apple did not immediately respond to a request.
The divestment law, passed by Congress with overwhelming bipartisan support amid national security concerns over Chinese influence, was signed into law by President Joe Biden and unanimously upheld by the US Supreme Court on January 17.
It imposes a civil penalty of $5,000 per user on service providers for violating the ban, creating billions of dollars in potential legal exposure.
Executive orders cannot overturn laws passed by Congress, and lawmakers have sued in the past to enforce laws they’ve passed. Legal experts say even a hypothetical lawsuit from both houses of Congress could be lengthy, as courts may be inclined to see it as a political issue best left to the legislature, or a national security issue that is under the control of the White House.
The TikTok Act does not prescribe the right for private individuals to implement it. But shareholders could sue providers who invoked Trump’s order to ignore the ban.
“Shareholders of service providers would have a valid case against companies that rely on EOs,” said cybersecurity and digital privacy expert Timothy Edgar, who teaches at Brown University. “That’s a big risk they’re taking, given the extraordinary penalties the law provides.”
