Biden administration will leave it to Trump to implement TikTok ban

The Biden administration doesn't plan to take action that forces TikTok to immediately go dark for U.S. users on Sunday, an administration official told ABC News.

TikTok could still proactively choose to shut itself down that day -- a move intended to send a clear message to the 170 million people it says use the app each month about the wide-ranging impact of the ban.

But the Biden administration is now signaling it won't enforce the law that goes into effect one day before the president leaves office.

"Our position on this has been clear: TikTok should continue to operate under American ownership. Given the timing of when it goes into effect over a holiday weekend a day before inauguration, it will be up to the next administration to implement," a White House official told ABC News in a statement.

The way the law works, TikTok isn't required to go dark on Jan. 19. It's the app stores and internet hosting services that could be on the hook if they keep providing their services to TikTok. The law gives the Justice Department the power to pursue fines of up to $5,000 per user, an enormous potential liability given the app's popularity.

So even if President Joe Biden -- or President-elect Donald Trump -- say they won't enforce the ban, tech companies will still be liable as long as TikTok is owned by ByteDance. Apple, Google and Oracle have so far not responded to or declined to comment to ABC News about what they will do on Sunday.

And the reality is that both presidents have limited options to put the ban on hold.

The law states the president can grant a one-time extension delaying the ban for up to 90 days under three very specific conditions: TikTok must show it's on a "path to executing" a divesture from its Chinese owner; there must be "evidence of significant progress" toward a sale; and that progress must be sealed with "relevant binding legal agreements."

At this point, there is no sign that any of those conditions have been met.

A group of Democrats in the House and Senate introduced a bill on Tuesday that would have given TikTok's parent company ByteDance an additional 270 days to sell or divest but Republican Sen. Tom Cotton, chairman of the Senate Intelligence Committee, cited national security concerns in objecting to a request by sponsor Sen. Ed Markey for the Senate to unanimously approve the extension on Wednesday.

Senate Minority Leader Chuck Schumer said on the Senate floor on Thursday that it was "stunning" that Cotton blocked Markey's effort.

"It's clear that more time is needed," Schumer said. "We will continue to work to find a responsible solution to keeping TikTok going, protect American livelihoods, and protect against Communist Chinese Communist Party surveillance. We must and can do all three."

Schumer's office said he had also spoken directly to Biden to appeal for an extension.

Biden signed the Protecting Americans from Foreign Adversary Controlled Applications Act, which was part of a massive, $95 billion foreign aid package passed by Congress in April of last year.

Biden and some congressional leaders argued that the ultimatum against TikTok was necessary because of security concerns about ByteDance and its connections to the Chinese government.

Trump originally tried to ban TikTok in his first term, but has since reversed course, vowing during the 2024 presidential campaign to "save" the app. In a news conference in December, the president-elect said he had a "warm spot in my heart" for the app and gave it credit for helping him win over young voters.

Later in December, he asked the Supreme Court to delay the deadline so that he could work out a "negotiated resolution" that would save the app.

Trump met with TikTok CEO Shou Chew at his Mar-a-Lago club in Florida last month and he plans to attend Trump's inauguration on Monday, sources told ABC News.

On Wednesday, Florida Rep. Mike Waltz, Trump's pick for national security adviser, told Fox News that Trump was looking for options to "preserve" TikTok.

Waltz was asked about a Washington Post report that Trump was considering an executive order to suspend enforcement of the law. Sources familiar with the discussions confirmed to ABC News that Trump’s team has been talking about a plan, including a possible executive order, to keep TikTok available.

"If the Supreme Court comes out with a ruling in favor of the law, President Trump has been very clear: Number one, TikTok is a great platform that many Americans use and has been great for his campaign and getting his message out. But number two, he's going to protect their data," Waltz said.

"He's a deal maker," Waltz added. "I don't want to get ahead of our executive orders, but we're going to create this space to put that deal in place."

A majority of justices on the Supreme Court last week appeared inclined to uphold the law. During oral arguments, concerns about intelligence threats posed by China and potential future weaponization of the app seemed to override concerns about potential infringement on free speech rights.

"Are we supposed to ignore the fact that the ultimate parent of TikTok is doing intelligence work?" Chief Justice John Roberts asked the company's attorney.

-ABC News' Rachel Scott and Mariam Khan contributed to this report