TikTok is preparing to “go dark” on Jan. 19 if the U.S. Supreme Court rules against the app, a lawyer for the social media app said during oral arguments at the nation’s highest court on Friday. TikTok’s future has been uncertain, putting brands and creators in limbo, awaiting an ultimate decision on whether TikTok is allowed to operate in the U.S.
“At least as I understand it, we go dark,” said Noel Francisco, TikTok and ByteDance’s attorney. “Essentially, the platform shuts down.”
ByteDance is the Chinese-based parent company of TikTok, and a U.S. law is set to take effect on Jan. 19 that forces the popular app to close if the Chinese owner does not divest from the company. There have been some unknowns about what exactly happens to TikTok if Jan. 19 comes and a sale has not been finalized—for instance, 170 million Americans who have TikTok on their phones could theoretically continue to use the latest version of the app, but they just would not have access to updates.
Francisco’s stark warning suggests TikTok would see itself out entirely, possibly bricking the app. “We shut down,” Francisco said.
The court has not yet issued a ruling, but most court watchers seemed to agree that the justices were inclined to side with Congress, enabling the ban if divestment does not occur.
TikTok is holding out hope that President-elect Donald Trump, who takes office Jan. 20, could negotiate a deal among the U.S., China and TikTok to satisfy the demands of the law and keep TikTok open, but that still would be a day after the ban took effect, meaning that on Jan. 19, TikTok would “go dark,” as Francisco said.
“[Trump] can’t do that on January 19,” Francisco told the court, about the incoming president possibly negotiating a reprieve. “On Jan. 19, we still have President Biden, and on Jan. 19, as I understand it, we shut down.”
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Any disruption to TikTok would represent a significant shift in the social media landscape, where the app has become a fixture in the advertising and creator economies. The marketing world is watching the TikTok case closely to understand how they have to plan for the coming year if one of the top platforms is jettisoned from the mix.
TikTok’s troubles also come less than a month before the Super Bowl, the most important day in advertising when major brands run commercials and execute social media campaigns, many of which have had TikTok components that extend the reach of in-game ad buys. This year, some marketers have already said they are planning Super Bowl activities while deprioritizing TikTok over the uncertainty.
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On Friday, the Supreme Court heard TikTok’s case, which argued on First Amendment grounds that TikTok’s users have protected speech freedoms to access the app. Congress’ law determined that TikTok’s foreign ownership ties make it a national security threat.
Elizabeth Prelogar, solicitor general of the United States, made the case for the Biden administration, arguing that TikTok collects sensitive data on U.S. citizens that could ultimately wind up in the hands of a foreign adversary, China. The argument is that bad actors in China could use that data to engage in espionage, such as tracking high-profile U.S. citizens.
“It’s not a data privacy interest, it’s a national security interest,” Prelogar said. “There’s a distinct sovereign harm to the United States if our foreign adversary can collect this massive data set on about 170 million Americans.”
There was some discussion in the court that perhaps TikTok could inject warnings on the site about its connections to ByteDance, but Prelogar said the risk would still be evident.
“There are a lot of teenagers using TikTok today who might ignore a warning like that and not really care, but they’re going to grow up,” Prelogar said. “And they might become members of our military. They might become senior government officials, and for the Chinese government to have this vast trove of incredibly sensitive data about them, I think, obviously exposes our nation as a whole to a risk of espionage and blackmail.”
Advertisers have become enamored with TikTok, using the app to reach Gen Z consumers and stay current with media and commerce. If TikTok indeed shuts down on the 19th, “it wouldn’t just be a miss for TikTok and its parent company,” said Zarina Stanford, chief marketing officer at Bazaarvoice, a user-generated content provider that works with major brands and creators. “It would be a major shock to the social commerce space.”
