Why the TikTok bill is constitutional


The “Protecting Americans from Foreign Adversary Controlled Applications Act” was passed overwhelmingly in the House last week. The bill would make it unlawful for foreign adversaries — specifically defined to only include the governments of China, Iran, Russia and North Korea — to own or operate an app or website in the United States.

The poster child for this bill is TikTok, which is owned by ByteDance, an affiliate of the Chinese government that literally has an internal Chinese Communist Party committee as part of its governance structure.

The act is a no-brainer to resolve this issue, because it merely implements foreign ownership restrictions to enforce divestiture requirements at the app layer. It follows tried-and-true legal frameworks that America has implemented in a wide array of contexts. Indeed, the U.S. has applied foreign ownership restrictions for telecommunications services, broadcasters, banking, energy — the list goes on.

This wouldn’t even be the first time the U.S. has imposed a forced divestiture on these grounds. In fact, in 2020 the Committee on Foreign Investment in the U.S. forced the LGBTQ dating app Grindr to divest out of Kunlun Tech — a China-based tech firm — on the basis of, you guessed it, national security.

So what’s the rub?

TikTok, likely at the direction of its overseers in the Chinese government, has been pushing everyone it can in D.C. to repeat a number of empty talking points. These arguments fall into two broad categories — government overreach and constitutional concerns. Unfortunately for TikTok and China, each of these objections falls flat.

The charge of government overreach is a headscratcher. TikTok supporters suggest that the bill gives the White House unfettered authority to shut down any app with which it disagrees, like X or Telegram. But the text and structure of the act directly prohibit the president from lawfully doing that.

Even where the bill mentions the president, it imposes a restraint on what he can do. The bill requires the president to go through an extremely difficult interagency process to show that a particular app is owned by a statutorily defined set of governments and is controlled in the same way China owns TikTok. For example, the phrase “direction and control” used in the act is a legal term of art with a specific, narrow meaning that sets a high bar for future cases beyond TikTok. The bill also requires the president to put out a public notice of his determination for everyone to see.

Even after all of that, the law creates another legal backstop to further ensure the administration doesn’t go off the rails. Specifically, the law’s judicial review section allows afflicted companies, including ByteDance and TikTok, to challenge any enforcement or designation in the courts immediately.

The constitutional objections are equally curious.

To start, it’s already intuitive to the average American that foreign governments — especially our biggest adversaries — don’t have First Amendment rights. But more importantly, this bill targets the conduct of TikTok’s failure to divest — not the content that TikTok hosts. Indeed, the act makes clear that TikTok can operate in the U.S. if it cuts ties with ByteDance.

What’s more, the attorney general cannot use this act as a justification to go after users or affect any other federal law, which, by its nature, would include using the act to abridge users’ rights under the Constitution. Given that ByteDance has shown that it uses TikTok to spy on Americans, and the ban is not attempting to ban certain users or speech on other platforms (e.g., Instagram or Snapchat), the law will most likely pass constitutional muster under the First Amendment — or avoid the issue entirely, as was true when we banned China Mobile and Huawei and required Grindr to divest.

The act is also far from a bill of attainder — the term for a law that punishes individuals for past offenses without a trial — which the Constitution forbids. The Constitution’s prohibition, however, doesn’t apply to laws that regulate future offenses, only past offenses.

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For example, the U.S. banned the future sales of Chinese telecom giant Huawei due to its ties to the Chinese government. Huawei even sued in federal court on the bill of attainder theory. The District Court disagreed with Huawei, holding that Congress’s actions against Huawei were constitutional because it was not denying Huawei a trial for past offenses. Instead, it applied only to transactions that have not yet occurred and thus falls outside the scope of the type of punishment the Constitution seeks to protect against. So too here — the act isn’t even enforceable against TikTok for six months after it’s enacted, and only applies to violations after that time.

In short, this bill presents a targeted and constitutionally sound framework to address the digital assault Americans are experiencing from China. If these weak objections are the only thing standing in its way, then we implore members of the Senate not to let their version of great be the enemy of good. Our national security and democracy depend on it. Pass this bill.

Mark Meador is a partner at Kressin Meador and a visiting fellow at the Heritage Foundation. Joel Thayer is president of the Digital Progress Institute and a tech and telecom lawyer in Washington, D.C.

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