![\"TikTok](\"https:\/\/i0.wp.com\/abovethelaw.com\/wp-content\/uploads\/2025\/01\/GettyImages-2194817393-300x200.jpg?resize=300%2C200&ssl=1\" "\\"\\"")
<\/p>\n(Photo by VCG\/VCG via Getty Images)<\/p>\n<\/div>\n
Last night President Trump signed dozens of executive orders of dubious legality. Among the many federal laws and constitutional provisions he purported to cancel with a stroke of his pen was the Protecting Americans from Foreign Adversary Controlled Applications Act<\/a> (PAFACA), AKA the TikTok ban.<\/p>\n Citing his \u201cunique constitutional responsibility for the national security of the United States\u201d and the \u201cunfortunate timing of section 2(a) of the Act \u2014 one day before I took office as the 47th President of the United States,\u201d he ordered<\/a> the DOJ not to enforce the law for 75 days \u201cto permit my Administration an opportunity to determine the appropriate course of action with respect to TikTok.\u201d<\/p>\n Publicly Trump is floating a bid for the US government to buy half of the Chinese-owned app.<\/p>\n \u201cTikTok is worthless, worthless if I don\u2019t approve it, it has to close. I learned that from the people that own it. If I don\u2019t do the deal, it\u2019s worthless, worth nothing. If I do the deal, it\u2019s worth maybe a trillion dollars, a trillion,\u201d he babbled<\/a> as he signed the order. \u201cIf I do the deal for the United States, then I think we should get half. In other words wait, I think the US should be entitled to get half of TikTok. And congratulations, TikTok has a good partner, and that would be worth, you know, could be $500 billion or something.\u201d<\/p>\n The president, who claimed that it violated his First Amendment rights to kick him off social media platforms in January of 2021 alleging that they were functionally the US government, would like his own government to literally own a social media platform. And he\u2019s apparently in direct talks<\/a> with Chinese President Xi Jinping \u2014 dictator to dictator \u2014 to make it happen.<\/p>\n He scoffs<\/a> at the very security concerns that a bipartisan Congress and the Biden administration, not to mention the Supreme Court, agreed justified the ban.<\/p>\n \u201cRemember, they make telephones in China. They make all sorts of things in China. Nobody ever complains about that. Here they\u2019re complaining about this, so many different products made in China, nobody ever complained about the only one they complain about is TikTok,\u201d he went on, adding that it was fine, really if China exfiltrates data on American users because it\u2019s mostly young people who use the app, and \u201cIf China is going to get information about young kids out of it, to be honest, I think we have bigger problems than that.\u201d<\/p>\n This is a guy who signed an executive order<\/a> in 2020 banning TikTok because \u201cthe spread in the United States of mobile applications developed and owned by companies in the People\u2019s Republic of China (China) continues to threaten the national security, foreign policy, and economy of the United States.\u201d<\/p>\n Perhaps unsurprisingly, the tech companies are unsure of how to proceed. Under the plain language of PAFACA, US entities may not \u201cdistribute, maintain, or update (or enable the distribution, maintenance, or updating of)\u201d any application owned by TikTok\u2019s parent company ByteDance, and the attorney general \u201cshall conduct investigations related to potential violations\u201d of the law.<\/p>\n Trump\u2019s EO instructs the AG \u201cto issue a letter to each provider stating that there has been no violation of the statute and that there is no liability for any conduct that occurred during the above-specified period, as well as for any conduct from the effective date of the Act until the issuance of this Executive Order.\u201d<\/p>\n Clearly distributing TikTok violates PAFACA. This order is more than a promise to forego prosecution \u2014 it\u2019s a declaration that the law is what Trump says it is, Congress be damned.<\/p>\n But even if companies had confidence that Trump wouldn\u2019t change his mind again<\/em> and decide that TikTok is a threat to national security, PAFACA has a five-year statute of limitations. Trump\u2019s successor could still enforce the fines of $5,000 per user in violation of the law. Plus, the EO includes boilerplate language specifying that \u201cnothing in this order shall be construed to impair or otherwise affect the authority granted by law to an executive department or agency, or the head thereof\u201d and that it \u201cdoes not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.\u201d So even if Pam Bondi (assuming she gets confirmed) sends out\u00a0 notes pinky-swearing not to prosecute anyone for violating PAFACA, that won\u2019t help if the tech companies find themselves in court.<\/p>\n As it stands, the tech companies appear to be divided. Oracle and Akamai, which provide web support for TikTok, restored access<\/a> over the weekend before Trump even took office and signed the order. But TikTok remains unavailable in the Apple and Google app stores. Apple informs users<\/a> that it is \u201cis obligated to follow the laws in the jurisdictions where it operates\u201d and so it cannot offer new downloads, updates for existing users, or in-app purchases.<\/p>\n And so the question is whether the tech companies are going to fall on their swords<\/a> and risk billions of dollars in fines by opening up shop to the 170 million American users of the app (most of whom are adults<\/a>, BTW).<\/p>\n Turns out Trump was right in 2020 when he said the app could be used for \u201cblackmail.\u201d Just \u2026 not in the way we expected.<\/p>\n Liz Dye<\/a>\u00a0lives in Baltimore where she produces the Law and Chaos\u00a0substack<\/a>\u00a0and\u00a0podcast<\/a>.<\/strong><\/em><\/p>\n","protected":false},"excerpt":{"rendered":" If the president orders you to break the law, does that make it legal? (Spoiler Alert: No.) The post Trump Claims To Un-Ban TikTok By Fiat, But Tech Platforms Worry That Actual Law May Still Apply appeared first on Above the Law. (Photo by VCG\/VCG via Getty Images) Last night President Trump signed dozens of […]<\/p>\n","protected":false},"author":0,"featured_media":101291,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,17],"tags":[],"class_list":["post-101290","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law","category-legal_matters"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2025\/01\/GettyImages-2194817393-jqy7AA.jpeg?fit=594%2C396&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/101290","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=101290"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/101290\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/101291"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=101290"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=101290"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=101290"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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