The TikTok Ban: Three Insights for PR Professionals

Social media users, communicators, politicians, and media companies are all watching the ongoing issue of the so-called “TikTok ban” in the United States.  On April 24, 2024, President Biden signed the National Security Act, 2024, which, among other things, mandated the sale of TikTok within 270 days or the platform would be banned in the United States. This is a watershed moment for social media.  Never has a platform been banned by federal law, and the law’s implication for free speech, social media regulation, and geopolitical politics is significant, especially for public relations practitioners. 

TikTok use is prolific globally and in the United States.  In March 2023, the platform celebrated having over 150 million U.S. users on the app each month.[1]  These numbers are thought to be higher in 2024 with 170 million users in the United States.  (TikTok’s collection and use of GPS to count users by geographic location is questioned by many). At its height, TikTok was operating in approximately 160 countries worldwide (depending on how you define available), but has been banned on government devices in several countries, including Canada, the U.S., the U.K., and Australia.  India has a national ban on the platform along with other Chinese apps since 2021.[2]  Interestingly, TikTok has never been available in China, but ByteDance offers a similar platform for users called Douyin. 

Time spent on the platform is also significant.  Average time on TikTok in 2024 per user is estimated to be 58 minutes per day, up 6 minutes from 2023.[3]  Leveraging this time on the platform businesses, especially small businesses, can engage with customers at a scale not possible in brick-and-mortar operations or even other social media platforms.  It is estimated that 7 million small businesses used TikTok in 2023 generating approximately $14.7 billion in revenue.[4] 

The ban of this platform has been criticized because of the residual effect on the users’ ability to communicate and businesses’ ability to sell products.  However, proponents of the ban say this law is necessary because of national security concerns.  TikTok Inc. is a company that is owned by a parent company, ByteDance Ltd., which is headquartered in China and subject to China’s laws.  Part of the concern over TikTok is that Chinese law allows the government to mandate Chinese companies turn over any data to the government under their legal “superuser” status.  ByteDance has maintained that it does not and will not do that with U.S. data despite the fact they do collect data from users when an account is created, including birthdates, email addresses, and phone numbers (all is voluntarily given by users).  Their user policy also refers to the fact that TikTok may store and transmit data for processing outside the U.S.

However, there is bipartisan concern that this is not the case.  As a result, new federal law was enacted mandating TikTok divestment from ByteDance.  Opponents of the law say this law is tantamount to banning the platform in the U.S.  Critics, including both ByteDance and several legal scholars, also say this law is unconstitutional.  This law will have consequences for public relations practitioners and those actively involved in the communication field.  Right now, there are three big questions practitioners should know about when deciding what approach, they will take when dealing with TikTok potentially ending the U.S.

What are the legal challenges to this ban?  

Some users expect the divestment or ban to not take place because of the Constitutional issues of the new law.  While that may be true, the legality of the federal TikTok law is complex. TikTok, along with some prominent legal experts, have said this ban is unconstitutional under the First Amendment.  President Donald Trump attempted to ban TikTok (also through divestment) under executive order in 2020, but the U.S. Court of Appeals for the D.C. Circuit issued an injunction in Trump v. TikTok.[5]  Biden’s administration later dismissed the lawsuit.  In 2023, Montana passed a similar ban on TikTok, entitled SB 419, but the ban was blocked by the U.S. District Court which held that the law potentially contained multiple violations of the U.S. Constitution including the First Amendment, Supremacy Clause, and Commerce Clause.[6] 

These prior attempts to ban TikTok may foreshadow many of the legal arguments that will affect the current federal law.  The Montana law was a total ban on the platform within the state and did not provide for a mandatory divestment. However, TikTok’s challenge of the law included the argument that Montana’s ban was a content specific speech regulation that targeted editorial choice involving content curation.  That type of targeting requires the government to justify the law under strict scrutiny, the highest level of scrutiny afforded in First Amendment.  Strict Scrutiny mandates the government show its law serves a compelling government interest that is narrowly tailored using least restrictive means    Montana argued that even if this were a First Amendment issue (they didn’t concede that it was), it would be a content neutral regulation requiring only intermediate scrutiny, a much lower threshold that requires the government prove the law is narrowly tailored to serve a substantial government interest.  These standards matter, and compelling and substantial government interests are legally very different (it is much easier for the government to show substantial interest than a compelling one).

The recent federal law mandating divestment of TikTok would likely be challenged under similar arguments.  The U.S. government would likely argue that national security is the primary justification of the law, which would meet the requirements of strict or intermediate scrutiny.  Additionally, TikTok may also argue that this law is a bill of attainder, which is when the government singles out a specific company for punishment without proper Due Process.  That is a weaker argument, especially given the U.S. Court of Appeals for the D.C. Circuit, the same court that has exclusive jurisdiction over challenges to the federal TikTok law, held that laws addressing specific foreign companies, notably Russian, were not bills of attainder.[7]  

What happens if TikTok’s legal challenges fail?

If courts hold that the federal law on TikTok is constitutional, then the ByteDance will have 270 days to sell TikTok with the potential for 90-day extension to find a buyer if requested.  That may be a difficult task considering the platform is valued at $100 billion.[8] If no buyer can be obtained, then the platform TikTok will not be able to be downloaded or upgraded on devices because the law bans hosting services to from providing that support.  That means that no new downloads could be made via hosting services like the Apple App store, and that any upgrades to the app could not be made.  Essentially, users would have a lower-functioning TikTok app that would cease to work eventually.  There has been some speculation that VPNs (virtual private networks) could provide a work-around for U.S. users wanting to access TikTok.  Using a VPN presents unique issues, both technologically and legally.  The likely outcome of the TikTok divestment/ban occurring is that millions of users will eventually not be able to access or use the app.  As the platform degraded, use would likely go down, and content creators would need to find alternative outlets to engage with users. This creates another potential problem for social media use in the U.S. in that large companies potentially will grow even larger without competition from TikTok.  That raises already growing antitrust concerns over the power of U.S. based multi-billion-dollar social media companies.

How does the ban of TikTok affect PR practitioners?

Of course, all these changes to TikTok have professional implications for PR practitioners and organizations trying to navigate this changing and unpredictable regulatory landscape.  While it is possible that TikTok will remain as-is in the United States, it is also possible that it will not.  Communicators need to be prepared for this possibility and take proactive steps to transfer their content and redirect their followers to other platforms for continued engagement.  PR practitioners will also need to stay current with the legal issues surrounding TikTok and be aware that this new law may be a harbinger for other, more stringent, reforms to social media.  Globally, social media platforms are being regulated more heavily and their access and use is becoming more scrutinized.  Communicators are entering into a practice today where social media has matured, and the government’s understanding of its power and vulnerabilities have created new legal and regulatory initiatives.  The U.S. federal law on TikTok may very well be upheld, particularly given the composition of the U.S. Supreme Court and the growing national security concerns about data privacy and transfer.  This means that PR practitioners will now, more than ever, need to embrace multi-platform communications and expect that some social outlets may have a shorter shelf life.