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TikTok is back in the US – but Apple and Google are not sure if it should be.
The short video app has yet to appear on the tech companies’ app stores, reflecting an unease about the White House executive order that has given TikTok the confidence to resume operations after temporarily shuttering the service on 18 January. Apple and Google do not appear to agree.
The legislation forbade companies from distributing, maintaining or updating TikTok – for instance, selling it on an app store – after a deadline of 19 January. But the executive order, signed within hours of Donald Trump’s return to the White House, suspended for 75 days enforcement of an act that demanded the Beijing-based owner of TikTok, ByteDance, sell the app’s US operation or face a de facto ban.
The order seeks to reassure companies that work with TikTok that they will not be prosecuted for keeping the social media app on US users’ smartphone screens. It also instructs the attorney general – who leads the Department of Justice (DoJ) – to issue a letter reassuring those entities that the law has not been violated and there is no liability for their conduct.
Nonetheless, Apple and Google have taken TikTok off their stores, meaning US smartphone users cannot download it. In the rest of the world, the app is free to access as before. In China, ByteDance runs a sister app, Douyin.
Oracle, the cloud computing provider that delivers the app’s content, has not pulled the plug in the US. Larry Ellison, Oracle’s founder and the world’s fourth richest person, with a $209bn (£167bn) fortune, has been suggested by Trump as a potential buyer of TikTok.
Indeed, Ellison was present at a press conference last week where Trump suggested he buy it, saying it sounded like a “good deal”. On Saturday NPR reported that Trump was working on a deal to buy TikTok’s global operations that involved Oracle, although the president then pushed back on that scenario, saying he was not in talks with the company.
“Numerous people are talking to me, very substantial people, about buying it and I will make that decision probably over the next 30 days,” he told reporters on Saturday. The YouTube star, MrBeast – whose real name is Jimmy Donaldson – has also expressed an interest.
The Chinese government, which in the past has said a deal would require its approval, has indicated more openness to a transaction, with its foreign ministry saying companies should “decide independently” about their operations and deals.
According to legal experts, Apple and Google have reason to be cautious. Saurabh Vishnubhakat, a professor at the Cardozo School of Law, says a court might tolerate a “temporary suspension” of enforcement but is less likely to accept a “wholesale repudiation” of the law.
“Although the attorney general is free to declare what they think the law is – or what the president thinks the law is – it is ultimately for the courts to decide whether the law has actually been violated,” he says.
The wording of the order – referring to the DoJ and attorney general only – could also raise concerns for third parties that work with TikTok, says another expert, by exposing them to the risk of legal action from non-state entities.
“This means that parties other than the DoJ and attorney general, for example, privates, might be able to sue companies for non-compliance with the ban or divest mandate,” says Elettra Bietti, an assistant law professor at Northeastern University.
The promise not to prosecute a company for breaching the legislation – offers “minimal security”, according to an article last week by Alan Rozenshtein, an associate professor of law at the University of Minnesota. Trump could also change his mind, as he has done over banning an app that he wanted to shut down during his previous presidency, and selectively enforce the statute against companies he falls out with, Rozenshtein added.
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The Republican senators Pete Ricketts and Tom Cotton said in a joint statement that companies that violate the law risk “ruinous bankruptcy” as they backed Apple and Google’s move.
Google and Apple did not respond to requests for comment, although the latter has stated on its website that TikTok and ByteDance apps are no longer available in the US and it is “obligated to follow the laws in the jurisdictions where it operates”.
Apple and Google’s stance means users cannot reinstate the app if they deleted it before the 19 January deadline and also that TikTok cannot update it via their app stores. So prized is the social media app, that used phones with the app already installed have appeared on US resale sites listed as “unlocked with TikTok”, according to the New York Times.
Steven Murdoch, a professor of security engineering at University College London, said the app’s absence from online stores means it could ultimately stop working for US users.
“Apps need to be updated as the operating system changes,” he said. “If that can no longer happen, the app could malfunction or no longer work at all.”
Murdoch added that another concern is TikTok’s ability to fix any security problems that emerge on the app during the impasse.
In the meantime, Apple and Google are looking for something with more certainty than Trump’s executive order: a TikTok transaction that does not raise legal questions.
