How Biden or Trump can still rescue TikTok from US ban

When Donald Trump ordered the US government to ban popular Chinese social media app TikTok in 2020, he said the "aggressive action" was necessary "to protect our national security."

Now the Republican president-elect, who will start his second term in the White House on Monday, is seeking to protect TikTok from a new law that gives the app's parent ByteDance until Sunday, 19 January to sell to an American buyer or be banned in the US.

President Joe Biden, with just three days left in office, is being urged to give ByteDance more time to sell the app.

"We will put measures in place to keep TikTok from going dark," Mr Trump's incoming national security adviser, US Representative Mike Waltz, told Fox News.

The Supreme Court upheld the law today, ruling it did not abridge the constitutional right to free speech, in a blow to TikTok and final efforts by allies to save the popular app.

So how could Mr Trump or President Biden prevent TikTok from going dark?

Evidence of progress towards a divestment

The TikTok law gives the president the authority to grant a one-time extension of up to 90 days on the deadline for a sale, if he certifies that there is a path for - and evidence of progress toward - a divestment, including "binding legal agreements," which the law does not define.

Meeting those requirements would make it feasible for Mr Biden to give ByteDance a three-month reprieve, if a deal was on the horizon, according to attorney and former official in the Office of Director of National Intelligence Colin Costello.

While no offer appears imminent, under such a scenario, the binding legal agreement criteria could potentially be met by the signing of a simple "term sheet" between ByteDance and a prospective buyer.

However, Mr Costello said to halt the ban on a longer-term basis could require incoming president Trump to direct his Justice Department to "deprioritise" or not enforce the law, for a specified period of time.

That would take a page from former president Barack Obama, whose administration in 2012 decided to use "prosecutorial discretion" to grant deportation relief to immigrants who came to the US illegally as children.

In TikTok's case it could give Congress time to consider a new bill that would give ByteDance another 270 days to find an American buyer before being shut down.

Still, the new law threatens to penalise the tech companies that make TikTok available via their app stores - Apple Inc and Alphabet's Google - and it is unclear whether their lawyers would risk continuing to offer the app.

"That would put Apple and Google... in a real spot," said Mr Costello. "Here they would have the president saying he was not going to enforce the law although they would still be in clear violation of the law."

President-elect Trump’s creative escape route

Mr Trump could issue an executive order, invoking the sweeping International Emergency Economic Powers Act and claim that keeping TikTok is beneficial for national security, said Georgetown University Law School professor Anupam Chander, who has followed the issue.

Mr Trump could argue, for example, that such a move would keep users from fleeing to Chinese app Red Note, which is run directly from China and subject to Communist Party censorship.

The order could tell tech companies like Apple or Google that they would face no consequences for flouting the law, for example by keeping TikTok in their app stores past the legally mandated deadline.

Such a scenario would not be without its challenges, Mr Chander said.

"When the president can refuse to enforce the direct mandate of the law and promise the subjects of the law that it will not be enforced on them, that opens a can of worms," he said.

"I don't want to say it's illegal," he said. "It's creative and it's an affront to Congress, but when you give the President open-ended national security authority, he might exercise it in unexpected ways."