DOJ Opposes Pausing Sale-or-Ban Law for TikTok

A photo illustration of the TikTok logo displayed on an iPhone. Photo by Dan Kitwood/Getty Images

The Justice Department (DOJ) is opposing TikTok’s request that a potential ban be delayed as the app seeks an appeal in the Supreme Court of a national security law passed in April.

When President Joe Biden signed the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA) into law, it started a 270-day countdown for TikTok to cut ties with the Chinese communist regime, a foreign adversary to the United States, or else cease operating in the United States.

TikTok’s parent company, ByteDance, which is headquartered in China and subject to Chinese laws, said in a court filing that the Chinese regime would not allow the sale of the app, effectively making the law a “ban.”

The DOJ argues the 270-day clock was provided to allow time for TikTok to find a buyer and seek court review of any legal issues, and that there is no basis to pause that countdown during a petition to the high court.

Moreover, the law does not direct a ban of TikTok. Upon the Jan. 19, 2025, deadline, entities are prohibited from providing services to TikTok, but users who have already downloaded TikTok face no prohibition from continuing to use it. The president is also authorized to issue a one-time 90-day extension of the deadline.

“Petitioners are entitled to ask the Supreme Court to enjoin the law’s application pending that Court’s review, and they expressly reserved their right to do so and set a schedule that would allow time for it,” the Dec. 11 court filing reads.

“They are not entitled, however, to an injunction against an Act of Congress when the only court to consider their constitutional challenge has rejected it.”

TikTok announced its intention to appeal to the Supreme Court when a federal appeals court upheld PAFACA last week. On Dec. 9, TikTok then asked the appeals court to issue an emergency injunction to the law. Such an order would delay the deadline past Jan. 19, 2025, potentially giving the incoming president time to reverse the order, TikTok argued.

In appealing to the Supreme Court, TikTok can ask the high court for an emergency injunction of the law while the court reviews the petition. There is no guarantee the Supreme Court will accept the case.

TikTok had argued an injunction was necessary to prevent it from having to shut down “one of the Nation’s most popular speech platforms—for its more than 170 million domestic monthly users on the eve of a presidential inauguration.”

It had argued in the U.S. Circuit Court of Appeals for the District of Columbia that the law was unconstitutional because it violated the First Amendment rights of TikTok’s users. A three-judge panel rejected the argument and found no First Amendment violations.

The DOJ had argued that the law targets ownership by a foreign adversary, not content on the app. If TikTok were sold to an American owner, it could opt to retain the content.

TikTok had argued that the 270-day deadline showed Congress had not believed the threat to be “imminent” and would not be harmed by a delay.

In the latest court filing, the DOJ argued that the executive branch, Congress, and the federal appeals court have all already rejected TikTok’s arguments, so the court has no basis to extend TikTok a delay of its deadline under PAFACA.

The DOJ also argued that TikTok’s presentation of harms “downplays the national-security concerns underlying both the statute and this Court’s decision.”

“Continued Chinese control of the TikTok application poses a continuing threat to national security,” the filing reads.

The Chinese communist regime has passed several national security laws that require all entities operating in China to assist intelligence agencies, including by providing data upon request in secret.