Trump is considering a plan to save TikTok

By David Goldman, Kaitlan Collins and Kayla Tausche, CNN

(CNN) — President-elect Donald Trump is weighing a plan that could delay America’s TikTok ban, giving the new administration more time to potentially cut a deal with a US buyer to save the super-popular video app, sources familiar with the plans told CNN.

The potential executive order, which was first reported by The Washington Post, would strive to allow TikTok’s 170 million American users to continue to use the app for a certain period of time as the administration sorts out who could potentially buy it.

Trump, who supported a TikTok ban as president, has recently said he wants to keep the app alive – even posting a TikTok video in June in which he said he wanted to “save TikTok.” Last month, he asked the Supreme Court to stay the law so his incoming administration could work out a deal to keep TikTok available to Americans.

Still, Trump may ultimately decline to act. As the deadline draws closer, Trump – who’s never shied away from overt suggestions for the executive and judicial branches – has otherwise sat this one out.

TikTok and ByteDance, its China-based owner, have less than 4 days left before the app is banned in the United States – if it doesn’t sell itself to an American buyer.

TikTok declined to comment on the possibilities Trump or Biden could take action to save the app.

The ban would take effect Sunday, pending a Supreme Court decision that is expected to come soon. America’s highest court, however, appears poised to keep the law that bans TikTok in place.

Because the ban would take place a day before Trump takes office, an executive order on January 20 wouldn’t even be an 11th-hour attempt to save TikTok – it would have already been banned at that point.

The Biden possibility

That is, unless President Joe Biden takes action first.

Some lawmakers have urged Biden to delay the ban before it takes effect. Massachusetts Democratic Sen. Ed Markey and Kentucky Republican Sen. Rand Paul wrote to Biden in December, urging him to exercise an extension under the Protecting Americans’ Data from Foreign Adversaries Act, which provides the legal basis for banning TikTok and other foreign-owned apps deemed a national security threat.

“The stakes here are high: As a practical matter, even if the Court rules that the law is constitutional by the January deadline, ByteDance cannot divest TikTok in that limited time,” the senators wrote in their letter, sent December 19.

The law provides the president the authority to impose a one-time extension of up to 90 days. But triggering the extension requires Biden to prove to Congress that parties working on purchasing TikTok have made significant progress, including binding legal agreements for such a deal. Given ByteDance’s adamance that the company is not for sale, that evidence would seem to be nonexistent.

So it appears unlikely Biden could step in – even if he wanted to slow-roll the bill he signed after it was passed with broad bipartisan support in Congress.

TikTok’s uncertain future

Trump’s executive order would be another climb in a rollercoaster ride for an app that appears ready to shut its lights off Sunday and “go dark,” as the company’s lawyer, Noel Francisco, told the Supreme Court Friday. TikTok has fought the ban for years. But Reuters and The Information reported Wednesday the app is preparing to shut itself down entirely Sunday, giving its users the option to collect their data while restricting access to videos.

TikTok declined to comment on the possibilities Trump or Biden could take action to save the app.

But even if TikTok shuts itself down Sunday, that doesn’t mean it would go dark forever. It could ultimately sell itself to an American buyer down the road, which would presumably turn TikTok back on for American users.

Another option: TikTok could do nothing on Sunday, hoping that Trump’s potential executive order would give it the ability to remain online. The law doesn’t really force TikTok to do anything at all. It’s on the US-based companies that support TikTok to take action.

So, on Sunday, a very real possibility is that people won’t notice much of a change at all. Apple and Google probably will remove the app’s listing from their app stores, but people who have already downloaded the app could continue to use it if TikTok does nothing.

The enforcement mechanism for the new law would be the US Justice Department, which is changing hands at noon the day after the ban and which would have wide discretion to enforce the law (or not). So if Trump’s executive order says his administration won’t enforce the ban, TikTok may place a bet that all of the companies that host and support TikTok’s content will be willing to break the letter of the law with the understanding that they won’t be punished for it.

That’s probably not a long-term viable option, however: No one would be able to access the app if they got a new phone or never downloaded the app in the first place, for example. And it would become illegal for companies like Oracle that host TikTok’s content in the United States to continue to serve it to the app’s users. That could force TikTok to serve content from outside the US, degrading service.

The possibility of a sale

That’s why a sale may be the only way TikTok ultimately remains available for American users.

ByteDance has long been adamant that it has no intention of selling itself. TikTok’s magical algorithm that keeps you hooked on the app is its secret power, and putting a price tag on such a valuable commodity, envied by every other social media app, is difficult. Spinning off an American-only version of TikTok could also mean the rest of the world has to download a new app to access US users’ content. Yet Bloomberg and the Wall Street Journal reported earlier this week that China is weighing a sale — to Elon Musk.

Musk may have the resources to buy the app, and he’s a major Trump supporter and about to take a quasi-role in his government. Other candidates, including “Shark Tank’s” Kevin O’Leary and former Los Angeles Dodgers owner Frank McCourt, have also made an offer for TikTok.

O’Leary and McCourt’s bid, valuing the app at roughly $20 billion, is partly crowdfunded from the public. But it would not include an acquisition of the app’s algorithm, the key to its success and also US officials’ biggest security concern. O’Leary tells CNN the offer has been disseminated to interested parties, but it remains unclear whether the company will choose to engage.

“Both administrations have seen the offer and have access to it, as do all American shareholders of ByteDance,” O’Leary said in an interview. “And we have made sure ByteDance itself has it in its possession.”

O’Leary met with Trump at Mar-a-Lago last week to discuss the outlook for the app.

If ByteDance chooses to engage, Trump could perhaps argue that significant progress has been made on a deal and delay the ban.

A Trump executive order would be only a step in the process to keep TikTok online – not the be-all and end-all for the app. But it might keep the lights on just a little longer.

CNN’s Clare Duffy contributed reporting.

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