Congress passed a bill that could ban TikTok. Now Comes the Hard Part.

Congress passed a bill that could ban TikTok. Now Comes the Hard Part.

A bill that would force the sale of TikTok by its Chinese owner ByteDance — or ban it outright — was passed by the Senate on Tuesday and is expected to be quickly signed into law by President Biden.

Now the process may become more complicated.

Congress passed the measure citing national security concerns over China’s TikTok ties. Both lawmakers and security experts say there is a risk that the Chinese government could rely on ByteDance for access to sensitive data belonging to 170 million US users or to spread propaganda.

The proposed law would allow TikTok to continue operating in the United States if ByteDance sells it within 270 days, or about nine months, a period that the president can extend for up to a year.

The move could face legal challenges, as well as possible opposition from Beijing, which could block the sale or export of the technology. It’s also not clear who has the resources to buy TikTok, as it would carry a hefty price tag.

This issue may take months or even years to resolve, during which time the app may continue to work for U.S. users.

“It’s going to be a royal mess,” said Anupam Chander, a visiting scholar at the Institute for Rebooting Social Media at Harvard and an expert on the global regulation of new technologies.

Here’s what to expect next.

TikTok Day in Court
TikTok may start by challenging the move in court.

“I think that’s one certainty: There will be litigation,” said Jeff Kosseff, an associate professor of cybersecurity law at the Naval Academy.

The TikTok case will likely lean on the First Amendment, legal experts say. The company is expected to argue that the forced sale could violate its users’ free speech rights because a new owner could change the app’s content policy and reshape what users can freely share on the platform.

“Thankfully, we have a Constitution in this country, and people’s First Amendment rights are very important,” said Michael Beckerman, TikTok’s vice president of public policy, in an interview with creators on the platform last week. “We will continue to fight for you and all other users on TikTok.”

Other groups, such as the American Civil Liberties Union, which has been a vocal opponent of the bill, may also join the legal fight. A spokesman for the A.C.L.U. said on Tuesday that the group was still considering its role in the litigation that could potentially challenge the law.

The government may need to make a strong case that ByteDance’s ownership of TikTok makes it necessary to limit speech because of national security concerns, legal experts say.

TikTok already has a strong record in similar First Amendment battles. During his presidency, Donald J. Trump tried to force a sale or ban of the app in 2020, but a federal judge blocked that effort because it would have the effect of shutting down a “platform for expressive activity.” Montana tried to ban TikTok in the state last year because of its Chinese ownership of the app, but a different federal judge ruled against the state law for the same reason.

Only one of TikTok’s narrower restrictions has survived a court challenge. The governor of Texas announced an app ban on state government devices and networks in 2022 due to Chinese ownership and related data privacy concerns. Professors at public universities challenged the ban in court last year, saying it prevented them from conducting research on the app. A federal judge upheld the state’s ban in December, finding it a “reasonable restriction” given Texas’ concerns and narrow scope affecting only state employees.

Small Buyer Pool
Analysts estimate that the price for TikTok’s US share could be tens of billions of dollars.

ByteDance itself is one of the most valuable startups in the world, with an estimated value of $225 billion, according to CB Insights, a firm that tracks venture capital and startups.

The high price tag will limit the list of people who can afford TikTok. Tech giants like Meta or Google may be blocked from acquisitions due to antitrust concerns.

Private equity firms or other investors can form a pool to raise enough money to buy TikTok. Former Treasury Secretary Steven Mnuchin said in March that he wanted to build such a group. And anyone who can come up with the money still has to rally with the U.S. government, which has to sign off on any purchase.

Several others have expressed public interest in purchasing the app.

The last time the government tried to force ByteDance to sell TikTok in 2020, the company held talks with Microsoft and software company Oracle. (Oracle and Walmart eventually appeared to reach an agreement with ByteDance, but the deal never materialized.)

Complicated Sales
Even as TikTok nears a sale, the process of separating TikTok from ByteDance is likely to be messy.

The legislation prohibits any relationship between ByteDance and TikTok after the sale. Yet TikTok employees use ByteDance software in their communications, and the company’s workforce is global, with executives in Singapore, Dublin, Los Angeles and Mountain View, Calif.

It’s unclear whether ByteDance will consider selling TikTok’s entire global footprint or just its U.S. operations, where the company has nearly 7,000 employees.

Cracking the US-only side of TikTok can prove very challenging. App recommendation algorithms, which learn what users like and serve content, are key to app success. But Chinese engineers are working on the algorithm, which is owned by ByteDance.

During Mr. Trump’s attempt to force a sale in 2020, the Chinese government issued export restrictions that appear to require its regulators to give permission before ByteDance’s algorithms can be sold or licensed to outsiders.

Uncertainty surrounding the export of ByteDance’s algorithms and other technology could also deter interested buyers.

China’s Unpredictable Role
The Chinese government may also try to block the sale of TikTok.

Chinese officials criticized a similar bill after the House passed it in March, though they have not said whether they would block the divestment. About a year ago, China’s commerce ministry said it would “firmly oppose” the sale of apps by ByteDance.

China’s export rules appear to cover TikTok’s content recommendation algorithm, giving Beijing a say in whether ByteDance can sell or license the app’s most valuable features.

“It’s not a foregone conclusion by any means” that China would allow the sale, said Lindsay Gorman, a senior fellow at the German Marshall Fund who specializes in emerging technology and China.

China may retaliate against American companies. On Friday, China’s Cyberspace Administration asked Apple to remove WhatsApp and Meta Thread from its App Store, according to the iPhone maker. The Chinese government cited national security reasons in making the demand.