The law didn't require them to shut the service off for those who already had the app installed. It just prevented new updates or downloads. Shutting off the app immediately was just theater and reinstating the app with no changes to the law is just the second act.
The law says that US cloud providers are fined if they continued to provide services to Bytedance.
As far as we know, Tiktok is operated on US servers by Oracle. While it might have been possible to find another cloud provider and move all US data there, I can see them not wanting to do that given that there was no point if the app isn't distributed in the US anymore.
There's currently no evidence pointing towards Oracle shutting down cloud service to them though. TikTok appears to have just preemptively shut down the app before they were obligated to, complete with dramatic messages telling users what to blame and who to thank.
Even without following the letter of the law it's entirely rational behaviour for a popular market leader to foment outrage by fully blacking out services. 150 million users (in the US alone) is a very powerful political influence. Politicians frequently fold for a few thousand vocal people complaining on the internet.
Of course it's rational behavior. Nico was the one claiming that they were just "following the law", that's what this subthread was about. If you agree that TikTok was making a political point by shutting down, then you agree with the person you're replying to.
Such compromises happen between companies as well when a particular app is popular. Facebook and Uber accessing private java apis which meant Google couldn't change the internals as these apps are popular.
I believe Tiktok shut down the app in India in the same way without being "obligated to" either before the order came into effect, albeit without the dramatic messaging.
(The latter part is probably because Tiktok's banning was not particulaly divisive within the population as it is in the US.)
I don't know exact figures, but when Tiktok was banned, Instagram was really popular - due to being pushed by Facebook, which was really really popular in India by then. None of my friends were on Tiktok, but all where there on Instagram. The reels thing was not popular but Facebook linked the account automatically and you just keep adding Facebook friends there as well.
Tiktok had a better algorithm (to get hooked) but Instagram eventually caught up (with algo)..
The dramatic messaging was entirely the point. India probably did not have an easily exploitable target for such a message, so there was no point in trying that there.
Oracle did shut them down last night, if Google and Apple have to drop their apps on the apps store, Oracle and other providers have to drop them too. Btw, the app won't function even if parts of the infra is down. Btw, business is risk averse, they don't want to give any excuses for government to fine them. Bytedance should definitely shutdown everything and blocked all US users unless they have explicit, written and legally bidding instructions from the Justice Department. Only an executive order is enough. They asked Biden to give that, but Biden just smirked
I’m not sure this is correct. I see where you’re coming from, but there was a clear date that the law was going to be enacted by, and tiktok simply followed that date. Pretty much everybody expected tiktok to be required to shut down. The law is clear that there are penalties for tiktok continuing to operate past that date, so it’s not really surprising.
They were telling users who to blame and who to thank because in this specific case, the blame and the thank are pretty clear. The Biden administration approved the ban, and the Trump administration reversed it. Blaming one and thanking the other is also hardly surprising.
Well, "the law" is a shorthand for "how the police behave" and there is a certain amount of realpolitik here. The basic argument here would be that the US Congress made a scary growling sound and TikTok folded immediately because the Congress is terrifying. But then Trump made more of a friendly sound and so they think they can operate a bit longer with some level of safety.
There is no question that TikTok is a politically sensitive app and the US/China are very nearly in the funnel to a major war so a lot of the usual niceties are questionable. Previously the US has attempted something that looked a lot like a black-bag kidnapping of a Chinese industrialist [0]. I'd imagine that the TikTok people are acutely sensitive towards how the law is actually going to be interpreted and enforced in practice.
This is basically the same tactic to the SOPA/PIPA protests [1]. I don't know why people are bending over backwards to pretend it was something other than a political stunt. Also, Trump's rhetoric has remained unchanged since well before this - a 90 day extension. They wanted to flex their muscle to show the US political establishment how many US users there were and how much sway they had to give them more leverage in their negotiations. That's about it.
Jan 17: Biden administration says it will leave TikTok ban enforcement for Trump [1]
Early Jan 18: Trump says he will 'most likely' give TikTok a 90-day extension to avoid a ban [2]
Late Jan 18: TikTok makes app unavailable for U.S. users ahead of ban [3]
Midday Jan 19: TikTok begins restoring service for U.S. users after Trump comments [4]
They already knew what was going to happen. They also changed the message shortly after disabling it from "We're working to restore service in the U.S. as soon as possible, and we appreciate your support. Please stay tuned." to "We are fortunate that President Trump has indicated he will work with us on a solution to reinstate TikTok once he takes office. Stay tuned!" [5]
If your cloud provider tells you they are shutting you down on date X, you want to fight as hard as you can until X and then shutdown gracefully to have a chance to explain to your users why your system is going down. If you wait until you get shutdown, you have no way of pushing a graceful shutdown anymore.
Oracle has no interest in running afoul of the US government at all. Their internal culture in many ways views them like that of a quasi-government institute. So in thus case they probably are feeling responsible to actually be the ones enforcing the law.
I imagine shutting down ByteDance is not like flipping a switch. They have a mountain of infrastructure and “shutting down” could mean nuking the data or otherwise getting it out of their cloud entirely. If it has to be done by a certain date you’d need to start nuking things well in advance to be absolutely certain you’re in compliance by the deadline. I’m surprised the shutdown happened as late as it did if this wasn’t a completely staged crisis.
That’s a trivial problem to solve though. Just push an update to the app that shows the „we were banned“ message if a specific API endpoint isn’t reachable anymore (and general internet connectivity is still there of course). Then you can operate as normal until your servers are forcefully shut down.
That's not true, distributors of the app are fined. Meaning, very specifically, app stores.
From (2)(a)(1):
> (A) Providing services to distribute, maintain, or update such foreign adversary controlled application (including any source code of such application) by means of a marketplace (including an online mobile application store) through which users within the land or maritime borders of the United States may access, maintain, or update such application.
>
> (B) Providing internet hosting services to enable the distribution, maintenance, or updating of such foreign adversary controlled application for users within the land or maritime borders of the United States.
Possession of and providing non-distribution ( / maintenance / update) services to a "Foreign Adversary Controlled Application" are not in any way a part of the "Protecting Americans from Foreign Adversary Controlled Applications Act". Operative services are specifically and intentionally excluded from the list, to ease the burden of enforcement.
I don’t use TikTok but the “down” page mentioned you can still login to download data. What’s the cost and scope of providing that feature without US cloud providers?
They reopened with formal understanding that there will be an executive order tomorrow to suspend the enforcement of the ban. That is a big deal and it's something that they can point to to defend themselves in court should that happen. When President Biden signed the bill, it gave him the ability to extend the deadline by an amount which he declined to do (beyond saying "I'll let Trump admin deal with it"); and soon-to-be President Trump is saying he will do it tomorrow.
Are you privy to the private discussions between Trump and the heads of TikTok, Apple, Google, and Oracle? Or are you simply assuming there have been no such private discussions?
Not actions, but legally binding statements of intent. If Trump offered a binding statement to the heads of all major players that he intends to offer TikTok the 90-day window and work out a "deal" once in office would be more than sufficient justification for these companies to ease enforcement until things become more resolved.
There is no mechanism by which Trump can offer a statement of intent that legally binds him to following that specific course of action after he becomes president.
That's not how the law works, though. Let's say Trump goes back on his word and doesn't sign this executive order, and then ByteDance (etc.) get into legal trouble. If they can convince a judge/jury that they had a strong reason to believe that they'd be acting within the law as they believe it would have been executed by the incoming Trump administration, that could be a persuasive defense.
That doesn't mean TikTok would be able to continue operating, but it could mean the parties involved wouldn't have to suffer penalties for their operation up to that point (past the ban date). But maybe it wouldn't work, and a judge/jury would throw the book at them. We just don't know until and unless it goes to court.
I'm not entirely sure what you are trying to argue? Obviously you understand that that if you create a contract stating that you agree to do [x] in the future, then you are indeed legally bound to that agreement.
If you're arguing that qualified immunity would enable Trump to break the contract if he so chose without consequence, then that is probably true, but I see no reason that would imperil the companies having a rock solid defense against enforcement penalties in the interim period.
Such a contract - where someone promises to use their (future) presidential powers in exchange for some consideration from the other party - would be illegal and unenforceable, because someone paying the president to exercise executive powers to their benefit is literally just bribery.
In what universe does this apply to the president? If the president promises a company to do X, it’s not a contract. I’m not even sure the president is allowed to make a contract with a private entity to give them a political favor.
There is no law or precedent to prohibit someone from engaging in contracts because of holding public office. In fact there is even an ongoing movement to try to get more politicians to do exactly this so that campaign promises would be more likely to be executed. Again qualified immunity would probably make these contracts impossible to enforce against a politician, but in this case the agreement would work as a defense if for some reason Oracle et al faced legal threats or fines for continuing to work with TikTok.
Trump => Agrees to avoid interim enforcement against companies facilitating the operation of TikTok + legally clarify matters when he gets into office.
Companies => Agree to temporarily facilitate the operation of TikTok until matters are further clarified.
I don't see anything particularly controversial here.
I'm pretty certain an executive order cannot overrule a law. So they're just hoping to either get an actual reversal of the law while Trump is in term or just hoping nobody after him will care.
It's like betting on jury nullification but without the benefit of double jeopardy protection. It's unclear if any of the US companies the law is aimed at will risk it.
Which would be an EO counter the constitution and obviously not durable itself. In 4 years the next DOJ can just enforce the law on the books with 4 years of evidence of companies openly breaking it. It'd be a slam dunk case
Most famously Richard Nixon received a pardon by Ford immediately after his resignation but before any prosecution. Also, it’s any federal law, the exception is impeachment and nothing else.
So, pardons can very much apply before conviction or even prosecution. They may not pardon someone for something that hasn’t happened, but as long as there in office when the crime is committed that’s more a technical issue.
After President Gerald Ford left the White House in 1977, close friends said that the President privately justified his pardon of Richard Nixon by carrying in his wallet a portion of the text of the Burdick decision, which stated that a pardon carries an imputation of guilt and that acceptance carries a confession of guilt.[6] Ford made reference to the Burdick decision in his post-pardon written statement furnished to the Judiciary Committee of the United States House of Representatives on October 17, 1974.[7] However, the reference related only to the portion of Burdick that supported the proposition that the Constitution does not limit the pardon power to cases of convicted offenders or even indicted offenders.[7][8]
> pardons can very much apply before conviction or even prosecution
Is this really the case? Has this specific situation ever been ruled on by the Supreme Court? Burdick v. U.S. doesn't address "pre-pardons" or blanket pardons. Nixon was never prosecuted or tried.
The court ruled they could reject a pardon given before prosecution thus avoiding the need to testify about someone else. It would be a moot point if the pardon was invalid.
Presidents can pardon classes of people. Carter pardoned all people guilty of evading the draft during the Vietnam War. So Trump could pardon everyone involved in certain companies or involved in a specific act.
This feels like a stretch, I don’t think it’s a pardon they are after. Pardons don’t really work like that.
TikTok I think was going for more of a shock factor. Maybe even without talking to Trump they have credited him as restoring it, might seem weird for him to “go back on it”.
Trump issued a statement saying that he would issue an executive order after he became president that retroactively would dismiss any fines which satisfied both TikTok and the app hosting providers (Apple, Google).
The President can offer pardons for criminal matters. However, he is required to uphold laws passed by Congress, particularly bipartisan ones affirmed by the Supreme Court.
For example, why would the President have a veto power if he can simply post-facto ignore laws they pass?
He's only accountable to Congress (SCOTUS also affirmed that) and good fucking luck ever getting the required votes to remove him from office. He can do whatever he wants with impunity.
SCOTUS pointed out that they weren't crimes committed by Trump. We then saw the political prosecutions of Trump backfire spectacularly in a way that strongly suggests that the balance of the US population agreed with the SCOTUS call that the prosecutors didn't have a case that Trump had to answer for.
There’s a bit of a “live by the sword, die by the sword” situation going on here.
Presidents can’t just ignore a law categorically (although they regularly do, e.g. DACA, DOMA, etc.) On the other hand, presidents can certainly decide not to prosecute a particular entity under a particular law. That’s the heart of the executive power versus the legislative power.
Here, Congress wrote an extremely specific law that applies basically to one company. Which isn’t impermissible. But it’s also not clear to me that Congress can insist on immediate enforcement of that law without crossing effectively usurping the executive power and directing the President to prosecute a specific company at a specific time.
Technically, the President + Executive can do whatever they want, including prosecute parts the Executive!), until the President is either impeached or replaced by election or incapacitation.
Technically yes. But what I mean is that, even in terms of the spirit of the law, the situation is a bit murky, because Congress effectively wrote a law that requires the executive to prosecute a specific company on a specific deadline.
That's actually one of the reasons the president has a veto. If the president doesn't want the law to pass, then there isn't much point in passing it unless Congress makes a show of force with the 2/3rds majority, which is also the majority needed to remove him from office.
Similarly, one of the reasons the president has a pardon power is because he doesn't have to enforce those federal offenses. E.g. imagine that a president without pardon power instead offers "plea deals"/settlements for a $1 fine or concocts vacuously lenient house arrest enforcement.
The original constitution basically accepts that there is very little you can make a president do, and it instead formalizes what would otherwise be a gray area (it does have plenty about what he can't do). Some of this has changed over time especially as the judicial branch has granted itself more power.
The entire system is built on checks and balances. For instance even a simple district attorney can choose to effectively nullify laws within his jurisdiction by not prosecuting violations - something that has regularly happened in contemporary times. Even the final check - the lone juror - can also nullify laws by similarly choosing to acquit alleged violations regardless of the evidence.
You could obviously create a far more functional system but it would probably be far less stable. The reason you have all these checks and balances, from top to bottom, is that the Founding Fathers were obsessed about the risks imposed by both a tyranny of the majority and a tyranny of the minority. And non-enforcement of something effectively comes down just a continuation of the status quo, making it difficult for any group to [openly at least] impose their will on others.
You're not wrong but the only real recourse for an executive that fails to uphold the laws created by Congress is an impeachment in the House and conviction in the Senate.
Theoretically that's true but in practice there is ample precedent for Presidents refusing to enforce specific laws. In one instance (DACA) the Supreme Court ordered a President to continue a previous President's official policy of not enforcing certain laws against certain people!
Don’t confuse the oath of office for a binding agreement. The president is supposed to uphold the law, but they are only held accountable by impeachment.
“Trump v. United States, 603 U.S. 593 (2024), is a landmark decision[1][2] of the Supreme Court of the United States in which the Court determined that presidential immunity from criminal prosecution presumptively extends to all of a president's "official acts" – with absolute immunity for official acts within an exclusive presidential authority that Congress cannot regulate[1][2] such as the pardon, command of the military, execution of laws, or control of the executive branch.”
It obviously irrelevant whether the law was bipartisan or not, and the Supreme Court never "affirmed" the law--it denied a preliminary injunction.
As to upholding laws passed by Congress--just two days ago, Biden did his last round of student debt forgiveness, bringing the total up to $188 billion.
I’m not trying to “both sides” this. I’m just saying that the standard you’ve articulated for how promptly the president needs to act on a law like this isn't the standard we apply in practice. The government tries to reach deals like this in lieu of enforcement actions all the time.
Did they shut down at the last moment necessary or did they shut down during what is likely a peak browsing time in the U.S.? Did they need to include messaging about political figures to notify the user of the reason of the ban?
I understand that there was this law. It's a political statement because of the political message being sent out to the user base. The act of shutting down on its own is not a political statement.
The law requires Oracle who hosts their data companies that provide cdn services to stop working with them. The law did require them to suspend service, but not quite as soon as they did and nothing had changed legally
The law required them to choose from among several options, one of which was suspending the service. The law did not permit maintaining the status quo as an option.
No, it does not at all require ByteDance to suspend service.
It requires Apple and Google to stop distributing the app on their app stores, and it requires any US-based hosting providers that host TikTok services to stop providing those services.
ByteDance could shut down any US-hosted services and serve from outside the US, and be entirely compliant with the law. The TikTok mobile app might become out of date and stop working (for people who already had it installed on their phones), but www.tiktok.com would continue to work just fine.
>and it requires any US-based hosting providers that host TikTok services to stop providing those services.
And they were forced to use those hosting providers (oracle) by the US.
It's not like investing loads to bring all the data over to singapore or so would serve them well either. They'd still lose the US business relatively quickly and with lower chances of turning things around like they might've. Why bother?
A) Behavior and statements are different things.
B) Biden also said he wouldn't enforce the ban (and also, it was the last day of his administration, so enforcement by Biden wasn't even possible)
This was a political gift to Trump, as the messaging in TikTok's app makes perfectly clear.
It seems like striking fear into the hearts of users to make them realize a ban is really on the table is in their best interest. They want to not be banned, and giving everyone a 48 hour show of users on the platform counting down to the end, then being really upset when they think it's gone is a great demonstration that people want their Tiktok.
* Trump gets a free layup to look like the hero for unbanning it
* Trump will think hard and heavy in the future about banning it again, knowing there's a lot of passionate young people that will reconsider voting for him next election if he does
Plus has there ever been a US president that came back after a term away? Usually when a "new" president comes in you figure they'll be running again next time.
Grover Cleveland also had two non-consecutive terms, and the twenty second amendment is pretty clear in it's language that you can only be elected to the office of President twice.
They shut down before the law required them to (by a few hours), and now they’re back despite no changes in law or action by the president. Biden had already issued an executive order, nothing changed
That would be my question also. You can't explain the shutdown as following the law if the law didn't change between the time of the shutdown and coming back on. It seems to me like the more accurate assessment here is an anticipation of policy changes, which however fruitful do not reflect any change in law, but perhaps some change in the degree of reassurance that the law won't be enforced.
If it's not that, it may well be as the original commenter in this thread suggested a stunt to make a point.
They were following the law. Anything else is just promises by people who are not exactly known for following through with them
Shutting down because the law says it, and to prevent really big penalties, is not making “a big political statement