“Congress judged it necessary to assume that risk given the grave national-security threats it perceived. And because the record reflects that Congress’s decision was considered, consistent with longstanding regulatory practice, and devoid of an institutional aim to suppress particular messages or ideas, we are not in a position to set it aside,” the concurring opinion by judge Sri Srinivasan said.
Both the US Department of Justice and TikTok have previously requested an accelerated ruling to come out by today. Since the law is upheld, the TikTok ban could take effect as soon as one day before Trump is inaugurated next month.
In reality, the app is most likely to survive a few more months. A 90-day extension of the deadline remains on the table for the Biden administration, which would leave the issue in Trump’s hands. What’s more certain to happen is that ByteDance would appeal the court decision today and take it to the Supreme Court next, which is expected to take the case and issue its decision later next year.
The Friday decision is not surprising to people who have been watching the case. In the oral arguments in front of the Appeals Court back in September, the judges seem to have already bought the idea that the app poses a valid national security concern for the US. The remaining question was whether a ban overcorrects based on those risks and causes more harm to freedom of speech. The judges said definitively today that the answer was no.
“Courts tend to give wide latitude to the executive branch on issues of national security,” says Dewardric McNeal, a former Department of Defense official and currently the managing director of DC-based consultancy Longview Global. The court opinion today indeed cites “persuasive evidence demonstrating that the Act is narrowly tailored to protect national security” offered by the US government.
While the Congress can theoretically repeal the PAFACA Act, it will be a tough case for Trump to convince them to do so because there’s a “large majority of the people on Capitol Hill who supported this law,” McNeal says.
In order to save TikTok, Trump could use powers of the executive branch to his advantage. “While you cannot completely disregard the law, you can decide how heavy you want to focus on the prosecution of the law, and how aggressively you want to execute the law,” McNeal says.
Alan Rozenshtein, an associate professor of law at the University of Minnesota Law School, told WIRED earlier that the PAFACA Act is written so that the US president gets to decide whether TikTok is “no longer being controlled by a foreign adversary.” This could create an easy way for the Trump administration to allow TikTok to continue operating in the US.
To avoid causing controversies with his Republican allies in Congress, Trump could also broker a deal for TikTok to be sold to an American investor. At least two prominent bids to buy the app have already emerged, including one from Steven Mnuchin, the former US treasury secretary, and Frank McCourt, an American real estate investor.
