Government Lawyers Say Trump Admin Can Use TikTok Again Because ‘Owned’ No Longer Means ‘Owned’

from the words-mean-what-i-say-they-mean dept

We spent a few years pointing out the ridiculousness of the whole “TikTok ban” moral panic, and the fact that all of the “concerns” magically melted away after Trump became president and then effectively gifted a controlling stake to some of his friends should raise some pretty big questions. However, most people seem to have accepted the new arrangement without much fuss — even though ByteDance still retains a 19.9% stake in the company, and users at no point needed to switch to a brand new app, continuing instead to use the very app we were told was a security nightmare. All of which suggests the entire moral panic was absolute bullshit.

Either way, prior to the full “ban” that forced further ownership into the hands of Trump’s friends, there was a separate law from Senator Josh Hawley which simply banned TikTok on government devices. That law is still in effect. It’s pretty clear that it applies to “the social networking service TikTok or any successor application or service developed or provided by ByteDance Limited or an entity owned by ByteDance Limited.” It’s also clear that such an application is not allowed on any government devices, with exceptions only “for law enforcement activities, national security interests and activities, and security researchers.”

Now, a plain reading of the law would suggest that the current app is still banned. The law is still in place. ByteDance still owns a significant stake in the new “US joint venture” and the app is absolutely a “successor app” since users never needed to download a new app after the joint venture was established.

But, the Trump administration apparently would like to use TikTok on their devices. So, they’ve had the Office of Legal Counsel put out a decision claiming that, you know, ownership doesn’t really mean ownership and that the Trump administration can ignore the law and start using TikTok on their devices again. First things first, we discover that because Josh Hawley wrote a stupidly drafted law that directly called out “TikTok,” the OLC has to first tap dance around the fact that the law’s clearly named “TikTok” apparently doesn’t mean this TikTok, even though that’s exactly what the statute says:

Blackletter statutory-interpretation principles illuminate which particular “TikTok” Congress sought to prohibit. It is old wisdom that “a general phrase can be given a more focused meaning by the terms linked to it.” Fischer v. United States, 144 S. Ct. 2176, 2184 (2024). Namely, “the canon of noscitur a sociis teaches that a word is ‘given more precise content by the neighboring words with which it is associated.’” Id. at 2183 (quoting United States v. Williams, 553 U.S. 285, 294 (2008)). We apply this rule to “avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words, thus giving ‘unintended breadth to the Acts of Congress.’” Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995) (quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961)). And precisely that kind of unexpected breadth would ensue here, were the Government Ban understood to apply to any future social networking platform based on its name alone.

[….]

We have considered the counterargument that, under the Dictionary Act, “words importing the singular include and apply to several . . . things,” 1 U.S.C. § 1—thus indicating that the Government Ban’s use of the phrase “the social networking service TikTok” could denote multiple unrelated variations or iterations of social media companies named TikTok. But the Dictionary Act itself provides that its general prescriptions do not apply when “context indicates otherwise,” id., and context does so in this case. “In context[,] the phrase ‘[the social networking service TikTok]’ should not be interpreted to mean literally ‘any [social networking service called TikTok],’ but must be understood against the background of what Congress was attempting to accomplish in enacting the [Government Ban].” Gustafson, 513 U.S. at 575 (cleaned up) (quoting Reves v. Ernst & Young, 494 U.S. 56, 63 (1990)). Here, the plain text of the Government Ban indicates Congress was attempting to address a particular national security threat posed by the presence on federal government devices of software “developed or provided by ByteDance Limited or an entity owned by ByteDance Limited.” Government Ban § 102(a)(1), 136 Stat. at 5258. TikTok USDS thus is covered by the ban only if it, like the version of TikTok operative when the ban was passed, falls into that category of software.

Call me pedantic, but if Congress didn’t want to ban an app “based on its name alone” maybe they shouldn’t have drafted and then passed a law that banned an app based on its name alone. And if Congress thinks that the new TikTok is somehow safer, they should repeal the original, poorly drafted law. Instead, the OLC has to start asking “what is ownership, really, other than a concept”?

For three reasons, we conclude that “ownership” in the context of the Government Ban is best understood as referring to a controlling stake, such that TikTok USDS falls outside the prohibition’s scope.

First, the “control” sense of the word “own” is most “consistent with the way that an appropriately informed speaker of the language would understand [that term’s] meaning” in the specific context of corporate structure. Van Buren v. United States, 141 S. Ct. 1648, 1657 (2021) (quotation marks omitted). The United States is home to “large numbers of firms with widely dispersed share ownership.” Henry Hansmann & Reinier Kraakman, The End of History for Corporate Law, 89 Geo. L.J. 439, 443 (2001). But it would be unusual for someone to say that a person or even an institutional investor “owns,” for example, Meta, simply because the investor holds some of its stock. Cf., e.g., Van Buren, 141 S. Ct. at 1657 (“In the computing context, ‘access’ references the act of entering a computer ‘system itself[.]’”). Instead, in the corporate context, we generally recognize Mark Zuckerburg as the “owner” of Meta because he retains control of the company through so-called “super-voting” shares. See Nathan Reiff, Top Facebook (Meta) Shareholders, Investopedia (Mar. 21, 2026), https://perma.cc/XQ6V-ZNTT; Gregory H. Shill, The Social Costs (and Benefits) of Dual-Class Stock, 75 Ala. L. Rev. 221, 224 & n.6 (2023).

So, hear me out, if Josh Hawley and Congress meant for the law to only apply if ByteDance “controlled” the company, then it could have (and arguably should have) written that into the law. But they did not. They said ownership. And that mattered because, technically before the “divestiture” and new US “joint venture” Western investors already owned about 60% of ByteDance, with employees and ByteDance’s founder holding most of the rest. The goal of the various laws to ban TikTok was to get ByteDance out of owning any of the company.

And that didn’t work. But we all have to pretend this “fixed” things, so the OLC just says “eh, because US entities now control it, we can ignore the law and pretend it said “control” rather than “own.”

Our textual interpretation is confirmed by the facts on the ground, which indicate that the TikTok USDS joint venture is wholly controlled by American interests as a functional as well as a formal matter—and thus exhibits none of the concerning security features that initially motivated the Government Ban. As our prior advice to you highlighted, if facts did not bear out that conclusion, then our understanding of “ownership” as used in the Government Ban could be called into question. But where, as here, the facts demonstrate that ByteDance Limited’s status as a minority shareholder in the joint venture has no impact on the exercise of control over the venture by United States investors, the inference runs the opposite way. Congress had no need to target minority ownership by ByteDance Limited in the Government Ban because that state of affairs is wholly compatible with the joint venture “operat[ing] [TikTok USDS] under defined safeguards that protect national security.”

Of course, all this really does is confirm Calvinball rules: the definitions change exactly as often as it takes to get the outcome someone in power wants. When “ownership” needed to mean any ByteDance stake to justify a ban, it meant that. Now that the administration wants TikTok back on its phones, “ownership” apparently means “controlling stake,” and 19.9% doesn’t count.

The real lesson here appears to be that the earlier concerns were exaggerated. Josh Hawley and Congress wanted to get headlines about how they were “taking on China” and “big tech” more than they wanted to write a clear law. They had a moral panic about one specific app, dressed up in national security language, and now that the political winds have shifted, the Office of Legal Counsel is left doing contortions to make the text say what the moment requires.

Filed Under: donald trump, josh hawley, olc, ownership, tiktok ban

Companies: bytedance, tiktok