Update: January 17, 2025
The Supreme Court this morning handed down their ruling that the TikTok ban does not infringe on constitutional rights and can proceed. With two days to go until the deadline to sell or ban the app from the United States, there are no indications that any outside factors will stop the law from taking effect this Sunday.
While there are still many unknowns (outlined below) of what will happen to the app we are advising our clients to prepare for the likelihood that it will go dark. This means that not only will users of the app no longer be able to access content but marketers hoping to reach those U.S. consumers will no longer be able to do so via paid advertising on the platform.
Our advice to clients is to prepare by pausing ad campaigns and begin shifting ad budgets into other platforms such as Instagram Reels and YouTube Shorts until more information is available on whether TikTok has a chance of returning to the American shores.
Original post follows:
At this point in the new year, the specter of a TikTok ban seems inevitable. In just a few days’ time, on January 19th, millions of Americans will, most likely, lose access to an app they have come to rely upon for news, entertainment, and, in some cases, their livelihood.
In 2024, a bill was passed by Congress and signed into law by President Biden, that bans access to any app in the United States that is owned by a corporation in an adversarial foreign country. To avoid such a ban, any so defined app must sell to a U.S. entity to continue to operate on American soil. As TikTok is owned by Chinese corporation ByteDance, the law is squarely aimed at them. The concern being the collection of data and manipulation of Americans by the Chinese government which has raised significant national security issues.
While there has been much discussion over the past 9+ months, we still do not know what the fate of TikTok will be after January 19th. Pundits have debated whether the law would impact 1st Amendment rights. Some congressional leaders have spoken against banning the app on those same free speech arguments. And even President-elect Donald Trump has weighed in on the matter, urging a pause on the ban until he officially takes office and can try to broker a deal to sell the app. But currently the fate of the app rests on the Supreme Court after the law banning the app was upheld by a lower appeals court.
At Media+ we have been keeping a close eye on the situation and sharing with clients our concerns, possible outcomes and actionable next steps. Here are several scenarios of what might transpire over the next few days:
1) SCOTUS could rule the law banning TikTok from U.S. app stores as unconstitutional, allowing the app to continue to live on.
During oral arguments last week in front of the full panel of judges, questions and comments from the sitting judges appeared to lean towards upholding the law as it is directed at a foreign corporate entity which would not have protections under the Constitution of the United States. So, it is unlikely that the SCOTUS will rule that the law runs afoul of any constitutional protections.
2) The Justice Department could decide not to enforce the law, either of their own choosing or after 1/20 when Donald Trump officially takes office.
Our take: This seems unlikely given the bipartisan support in both the House and Senate when the law was passed and the potential danger to national security that the app poses. Even if the Justice Department doesn’t enforce the law, there is still a concern for technology providers like Apple, Google and Oracle (all providing U.S. resources that allow the app to reach American consumers) that, should the law be enforced, heavy fines could be levied against them of $5K per person. As TikTok has hundreds of millions of users, these fines could be devastating.
3) President Trump, given his broad discretionary powers once sworn into office, could determine that ByteDance has engaged in “qualified divestiture” if they show they’ve taken efforts to sell TikTok to an American entity and declare the law no longer applies to TikTok.
Our take: While this may seem like an easy solve given Trump’s previous comments about hoping to save the app, and the close loyalty of Republican lawmakers, it could be challenged in court by competitors or congressional leaders.
4) Congress could be directed by President Trump to repeal the law.
Our take: Given the overwhelming bipartisan support in Congress in support of the ban, any repeal would be extremely difficult politically to make happen, though this is not to say that it couldn’t happen.
5) A sale of TikTok.
Our take: The odds are low that a sale will take place prior to 1/19. However, there have been discussions between ByteDance, the Chinese government and Kevin O’Leary in a bid to buy TikTok, minus their algorithm. If an agreement were to be reached, even after 1/19, the President (either Biden or Trump) could direct the Justice Department not to enforce the ban and allow the app to reappear in the U.S. while the sale is finalized.
6) On Sunday, January 19th, the app will go dark.
Our take: Internal TikTok memos have indicated that on 1/19/2025, if the ban is in place, they will shut down the platform in the United States and a pop-up will direct anyone accessing the app to a website with information about the ban. This would end any engagement by U.S. consumers as well as any active ad campaigns targeting the United States.
While it is unknown how this will all play out, we are strongly recommending that our clients consider other platform options beyond TikTok for reaching their target customers – Reels on Instagram and Shorts on YouTube would likely see lifts in consumer engagement post-ban. Additionally, across programmatic channels, OLV and CTV could also be leveraged, with an appropriate and thoughtful layering of targeting, to drive consumer engagement.
At Media+ we will continue to monitor the situation and provide the most relevant recommendations to ensure our clients are aware of all options available to support their marketing goals.
