Corporate Responsibility and Non-Enforcement of the TikTok Ban
Providers skate by, or refuse to answer, the hard questions.
Please click here to opt in to receive via email our Roundup—brief daily summaries of news developments and commentary related to executive power.
Scour the commentary on President Trump’s refusal to enforce the TikTok ban, or the attorney general letters purporting to immunize violations of the statute, and it is hard to find any serious defense of their lawfulness. As Jack has written, the non-enforcement of this law is “blatantly unlawful”: It illustrates, as Alan Rozenshtein succinctly puts it, “this administration's imperial conception of itself.” So far as I can tell, the defenses have consisted of a claim that non-enforcement may be questionable as a “legal matter,” but available to the president as a “practical matter” (if it is somehow and improbably considered an exercise of prosecutorial discretion). One commentator can only bring himself to say that he cannot care about this instance of Trump’s lawlessness because he believes Obama did the same.
Trump’s allies in Congress have not tendered a defense, only given in. They have limited themselves to an expression of unease (“I’m not overly delighted,” one senior GOP Senator murmured). And some hope that the problem will go away if the president would only forge an agreement for a divestiture of Chinese control that, pursuant to statute, would end the ban. Some Democrats who dislike the ban but are troubled by lawless non-enforcement have invited the president to work with Congress on a statutory grant of additional time for TikTok to remain legally available while Trump tries to cut such a deal. The administration has shown no interest in this offer. This is a case where Trump may not wish to take “yes” for the answer because he is bent on affirming that the only “yes” that counts is his own.
This statement of the facts seems well established and should not be controversial. More striking in this extraordinary case of presidential lawlessness is the limited attention so far paid to the role of Oracle, Apple, Amazon, and other providers of hosting or distribution services to TikTok. It seems out of the question that company lawyers will have advised their clients what no informed observers would claim: that the president has the authority to decline enforcement of statute, relieving the companies of the obligation to comply with it. And yet, in the absence of that authority, all of the major providers are doing business as before with TikTok, in apparent reliance on the Bondi letters assuring them they could ignore the statute and not be considered by her department as violating it and incurring any liability.
The spurious reasoning Bondi employs only underscores the absence of any good faith legal defense of this flagrant non-enforcement. Her defense, such as it is, is the best the administration can do, and it won’t do at all. The company lawyers know this. In this respect, the Bondi letters only make the legal case for non-enforcement—and for the companies to proceed without regard for their legal obligations—that much worse. It is Exhibit B, right behind the original executive order, for the lawlessness of this defiance of a congressional statute—one duly enacted by large majorities and its constitutionality fully litigated and upheld by a unanimous Supreme Court.
What the Bondi letters do explain is the companies’ apparent confidence that this administration will not prosecute them for non-compliance. That is not a consideration relevant to legal compliance, but only to liability realpolitik. For at least the next three and a half years they will be able to illegally support TikTok with impunity. They also likely gamble that a future administration will not proceed against them, if only because the next one, Democratic or Republican, will have priorities more attractive than fighting Big Tech over a highly popular social media product. (I won’t get deeply here into the question of how much faith the companies should put in any legal defense based on their reasonable reliance on the Trump executive orders and Bondi letters. I note only that they should not be overly confident.)
Is there anything more to expect from the companies faced with the massive revenue losses from ending their services to TikTok? In a case like this, involving companies with dominant roles in the society and economy, one might accept that business will be business but also that they should be accountable to some degree for their actions. Oracle, Apple, and Amazon have business codes of conduct that commit them and their employees to, among other principles, compliance with all laws and regulations. But they are not complying with this law, and they are well aware that they are not.
So far, no doubt also on the advice of their lawyers, the companies have said little to nothing about this departure from business ethics. Where they have left breadcrumbs, as Oracle did in its SEC filings, they only muddied the issue. In its May 2025 filing, Oracle referred to the non-enforcement orders as ones that “prohibit enforcement until a future date, and also prohibit the imposition of penalties at any time for providing services during the time period covered by the prohibition.” The clear implication is that the purported “prohibitions” have actual legal effect, and this is false. As a company that prizes compliance with “all” laws as a “core value,” this is a poor showing.
No better was Google’s response to a shareholder suit seeking its parent company Alphabet’s board minutes and materials related to how the officers and directors discussed and understood the legal effect of the executive order, Bondi’s guidance, and the company’s potential liability. Those documents reportedly include half a dozen responsive to this request, but the company has refused to release them unless compelled by court order to do so. Its lawyers did reply dismissively to plaintiff’s counsel that the allegation that the company was violating the law was an “unsupported legal conclusion.” Reference to Google’s business ethics code is useful in assessing how the company’s response measures up to its commitment to transparency: “Google is open and transparent as an organization regarding … the Company’s approach to investigating and responding to … allegations [of misconduct].”
All of this matters because an effective response to the lawlessness in this administration depends on the other branches of government, civil society, and the business community. At a minimum, it is fair to probe the seriousness with which the companies in the TikTok matter took their legal and ethical obligations.
The Freedom of Information Act (FOIA) requests to the government that yielded the Bondi letters sought only letters from the Department of Justice to these companies. Did the companies correspond or otherwise communicate with the department, seeking additional information on which to base their own analysis of the administration’s legal claims? Did company counsel inquire into any role the Office of Legal Counsel may have played in advising on the lawfulness of the attorney general’s claims that the companies could ignore the law without violating it or incurring liability? Or on the question of whether the administration could lawfully declare in a manner binding somehow on future administrations the “irrevocabl[e]” relinquishment of “any claims the United States might have … for the conduct proscribed in the Act”? The companies presumably conducted their own internal reviews, but did the due diligence extend to meaningful dialogue with the government?
The answers in each instance may be no, and that in itself would be telling. But the companies should be pressed for answers with the reasonable expectation that at least some will respond more in line with their transparency and other ethical commitments, thereby doing better than Google’s refusal to share this information except as compelled by court order.
Beyond pure dollars-and-cents calculations, customer demand, and competitive pressures, one other consideration may have carried some weight in the companies’ decisions to ignore their obligation to comply with this law. They may have been unwilling to incur the wrath of the administration for refusing this unlawful grant of purported immunity for ignoring the TikTok ban. The programs of retribution pursued at the highest levels of this government, as directed at law firms, universities, and disfavored individuals, are always available for activation. So, for either commercial or political reasons, or both, they could have concluded that the administration’s offer was one they could not refuse.
But the fact remains: The companies are breaking the law and counting on the administration’s lawlessness, Republican congressional acquiescence, and the immense popularity of the product to protect them. Maybe it will turn out that this episode is one of a kind. The chances that it will prove to be an exceptional one-off case of collaborative executive branch and business community lawlessness will be enhanced with a full accounting, which would have to include hard questions of the companies.