US President Donald Trump on Monday, on his first day back in office, signed an executive order delaying the country’s ban on TikTok for 75 days. But whether this move was legal remains up in the air.

The ban — signed by the Biden administration and upheld by the Supreme Court — gave ByteDance’s Chinese parent company until Sunday to sell its stake in the popular social media platform or face a US ban.

Lawmakers on both sides of the aisle have argued that the Chinese government could be using TikTok to spy on American citizens.

But there is little sign that Trump had the power to overturn the law.

“Executive orders cannot override existing laws,” said Sarah Kreps, director of Cornell University’s Technology Policy Institute.

The law has a provision that allows for a 90-day extension if progress has been made toward the sale before its effective date. The app was blacked out in the US on Saturday night, but was restored the next day, with a message to US users that the company was working with the Trump administration to find a solution.

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Chinese social media app RedNote has been thrust into the spotlight after more than half a million TikTok users recently joined the platform to protest a likely immediate ban on the short video app in the United States, which is set to take effect on Sunday. Technologist Jason Snyder says RedNote could ‘monitor or exploit users’, adding that the real danger comes with its ‘ability to control the narrative.’

Kreps says it’s even less certain that the provision can be applied retroactively, given that the law was already in place when Trump signed his order.

“It is not clear whether the new president has the authority to issue a 90-day extension of the law that has already gone into effect,” she said.

She also doubts there are conditions for a reprieve at this point — even if a potential buyer hasn’t been named to prove the sale is moving forward. Various media reports have debated whether Tesla and SpaceX CEO Elon Musk would buy the platform or whether Mark Zuckerberg’s Meta would be interested.

Trump, who had previously opposed the presence of TikTok in the US, told reporters he changed his mind after using the app himself.

Meanwhile, TikTok continued business as usual in Canada and elsewhere.

First Amendment issue

The Supreme Court approached the TikTok ban as a First Amendment issue, and whether the law violated TikTok or its users’ right to free expression, says Anupam Chander, a law professor at Georgetown University.

The court “does not judge the merits of the law. It does not judge the time frame of the law. It simply says, did Congress have the authority to pass this law?” he told CBC News.

It ultimately ruled the law constitutional, citing congressional concerns about the app’s data collection.

Chander, who is an expert on the regulation of new technologies, said that Trump’s delay in the ban could be challenged in court, although, he added, “it is not clear who would have standing in the US courts to challenge it.”

This, he says, is an example of the “danger” of executive orders.

“If you can say, ‘Hey, newspaper, you’re going to leave, and I can decide your fate in this country,’ that makes the newspaper very accommodating, to say the least.”

That was part of the Supreme Court’s argument — in a separate, broader case about social media platforms — in July, when Florida and Texas argued that the government should limit how these platforms regulate content posted by their users.

The court issued an opinion arguing that platforms — like newspapers — should be protected from government interference in determining what to include or exclude in virtual space.

US Representative Frank Pallone, Democrat from New Jersey, has suggested that Trump’s move was illegal, saying the newly sworn-in president was “circumventing national security legislation passed by large bipartisan majorities in Congress.”

House Speaker Mike Johnson, a Republican, did not comment on the legality of Trump’s move, but said he expected a full sale to pass.

But Trump may have other plans, suggesting to reporters on Monday that the government could reach a deal with ByteDance to buy a 50 percent stake in TikTok. Whether Beijing, which has been protective of TikTok in the face of US threats, will entertain the idea is another potential hurdle.

Still, the Chinese vice president met with US Vice President JD Vance and Musk on Monday after attending Trump’s inauguration, where TikTok CEO Chew Shou Zi was also present.

If the sale goes through, the partially US-owned version of TikTok would likely be cut off from the rest of the world, according to Chander — much like Chinese social media platform Douyin, a TikTok-like sister app that only operates in China for the Chinese market.

Those optics may not be good for the US, Chander says.

Douyin only operates in China because it’s a “very heavily censored environment,” he said. “And that’s not what we usually do in the United States.”

“Canadians wouldn’t talk to the rest of the world and Americans wouldn’t talk to themselves. It’s not a good look for the United States and it’s not helpful to the rest of the world.”