December 31st 2024 | Eddie Guan
Edited by Natalie Bernstein
On April 23rd, 2024, President Joe Biden officially signed the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA) into law [1]. It left ByteDance, TikTok’s parent company, with two options: sell its U.S. branch to an American company or shut down its operation in the U.S. The passage of the Act notably intervened during the height of the app’s popularity. TikTok has become the most downloaded social media app across the globe with almost 1.8 billion active users on the platform by the end of 2024. On one hand, the United States claims a national security threat from the Chinese Communist Party’s influence over the application. On the other hand, critics argue that the Act violates Americans’ right to access and express free speech, as protected by the First Amendment.
Former President Donald Trump attempted to ban TikTok in early 2020. By invoking the International Emergency Economic Powers Act (IEEPA), he issued two executive orders prohibiting transactions between TikTok and ByteDance, unless it was sold to an American company. Nonetheless, the District Court in D.C. blocked these orders, ruling that the presidential authority under IEEPA cannot limit information materials and personal communications that do not involve a transfer of value [2]. On the state level, both Texas and Montana passed laws banning TikTok. In February 2023, Texas Governor Greg Abbott announced a statewide ban on the use of TikTok on all state-issued devices as a result of data collection and Chinese government access concerns. In March, Montana’s Governor Greg Gianforte placed an even more comprehensive ban on all public and personal devices [3]. While the Texas law was upheld, the District Court of Montana ruled the Montana law invalid because it covered a broader scope, affecting all residents and private entities [4].
In early 2024, the push to ban TikTok was revived in Congress. At a Congressional hearing, the U.S. government brought TikTok CEO Shou Zi Chew to testify on behalf of the company. Shortly after this hearing, the House of Representatives passed the bill H.R. 7521 (PAFACA) with a sweeping vote of 352 to 65 [5]. This bill was later added to H.R. 815 as a rider bill, which also included provisions such as foreign aid and military assistance to Ukraine and Israel [6]. On April 23rd, President Biden signed the bill into law immediately after the Senate passed it. Two weeks later, ByteDance, alongside 8 content creators, filed a petition for review of the constitutionality of the Act in the U.S. Court of Appeals for the D.C. Circuit. In September, the court heard a two-hour-long oral argument from both sides [7].
To qualify in the scope of free speech, one must understand its definition in the legal context. Although the Constitution does not explicitly state the definition and scope of free speech, judicial review has expanded its application. In 303 Creative LLC v. Elenis, the court established that speech “conveyed over the Internet” is protected by the First Amendment [8]. The government can limit free speech in three circumstances: unprotected categories of speech, content-neutral restriction, and content-based restriction. Unprotected categories require the lowest level of legal scrutiny. The government determines the constitutionality of a statute simply based on a rational basis test. Examples include obscenity, fraud, child pornography, defamation, and actual threats, all of which are instances where justification is self-evident. In addition, a content-neutral restriction allows the government to regulate the speech’s time, place, or manner. This type of restriction is subject to intermediate scrutiny. To pass this, a law must “advance important governmental interests unrelated to the suppression of free speech, not burden substantially more speech than necessary to further those interests, and leave open ample alternative channels for communication of the information” [9]. The last of those is a content-based restriction which requires strict scrutiny and the highest standard of review. It requires the law to prove that the restriction serves a compelling government, is narrowly tailored, and is the least restrictive means [10].
ByteDance argues that the Act violates the First Amendment. The company asserts that TikTok, a “popular forum for free speech and expression” used by over 170 million Americans each month, provides users worldwide with the fundamental right to view and create content on the app. It believes that the law should be held to strict scrutiny— the highest standard of reviewing the constitutionality of a law— because the government bases its accusations on presumptuous threats from China [11].
In particular, ByteDance argues that controversial speech is protected and integral to a functioning democracy. In Lamont v. Postmaster General (1985), the Supreme Court ruled Americans have a right to receive information from foreign sources. This case arose from a Cold War-era federal law that required U.S. citizens to make an affirmative request to the government before receiving foreign “communist propaganda” through mail. The court struck down the law based on the First Amendment, as the requirement inhibited the free flow of information and deterred people from accessing controversial ideas [12]. This case presents a strong challenge to the U.S. government’s critique of TikTok’s content.
In addition, the Supreme Court’s majority opinion in NetChoice v. Paxton also reinforces ByteDance’s legality in operating TikTok. The Court overturned Texas and Florida laws that regulate content moderation practices of major social media platforms, like Facebook News Feed, based on First Amendment grounds. These companies’ actions such as “compiling and curating others’ speech” fall within the protection of the Constitution [13]. The court also cautioned against government interference in editorial decisions and emphasized the importance of maintaining a balance of viewpoints [14]. TikTok’s recommendation algorithm may be viewed as a content moderation practice, which would shield it from law regulation.
While ByteDance believes strict scrutiny should be applied, the government advocates for the use of intermediate scrutiny under the O’Brien framework. In United States v. O’Brien (1968), the Supreme Court established a four-part test to determine whether the government’s regulation on free speech is constitutional: 1) the government’s constitutional power; 2) substantial governmental interest; 3) unrelated to the suppression of free expression; 4) restriction is not beyond what’s necessary. The Act could fall under the government’s interest in protecting national security, which is unrelated to the suppression of free speech [15].
Congress identifies China as a foreign adversary and its ownership of TikTok as a national security threat. Although Shou testified that US users’ data are independently stored in Virginia and Singapore, policymakers were not convinced [16]. The Act states that TikTok is subject to the direction of the Chinese government [17]. According to Chapter II of China’s National Intelligence Law, the government or associated institutions wield the authority to compel cooperation from corporations and use necessary means to gain access to information [18]. By exploiting the data, the Chinese government could conduct espionage operations and infiltrate core agencies in the United States [19]. Another concern regards China’s manipulation of content displayed on the platform. Congress believes that it has the potential to spread misinformation, disinformation, and propaganda on TikTok given its tremendous user base. These concerns led Congress to perceive an overarching national security threat, prompting efforts to either prohibit the application or seek a divestiture transferring ownership of its U.S. operations to an American company.
One central conflict of the case is whether to apply strict or intermediate scrutiny to the Act. In order to apply intermediate scrutiny in this case, the government needs to provide further justification for the Act. The first question the court seeks to address is whether the Act intends to suppress free ideas. While the government claims national security as the driving factor, several members of Congress have shared thoughts that suggest otherwise. For example, Senator Mitt Romney suggests that a TikTok ban is justified due to the platform’s extensive dissemination of pro-Palestinian content and authoritarian propaganda. Similarly, Senator Marco Rubio has expressed concerns about TikTok’s potential for spreading Chinese propaganda, while Representative Mike Gallagher has referred to the app as “digital fentanyl” [20]. However, the First Amendment protects the free exchange of ideas, including controversial and provocative ones. The government cannot allow favored speech and restrict disfavored speech.
In addition, TikTok may argue that the Act does not leave ample alternative channels for this platform. Although some platforms offer similar features such as Instagram Reels and YouTube Shorts, TikTok’s success is mainly because of its unique recommendation algorithm, which was developed by ByteDance. Lastly, it could be argued that the Act is not the least restrictive form of law. Instead of a comprehensive ban, the government could adopt the “Project Texas” proposal offered by TikTok, or implement targeted data privacy regulations to address specific concerns. This approach would allow TikTok to continue operating under strict oversight.
The Act specifically names TikTok and its parent company ByteDance in its language, while also providing a framework to potentially regulate similar applications. This specificity, combined with the broader scope, has implications for the Act’s constitutionality. The Act’s focus on applications from “foreign adversary countries” (e.g., China, Russia, Iran, and North Korea) could be seen as discriminatory. This could potentially render it as a bill of attainder— a law that declares guilt without a fair trial— which is prohibited by Article I, Section 9 of the Constitution and could violate the Due Process clause in the Fifth and Fourteenth Amendments [21]. The Act could be considered a bill of attainder in two ways: 1) by specifically targeting China-owned applications, and 2) through its presumptive nature.
While the government’s concern is foreign ownership from adversary nations, TikTok stands out as the primary target due to its unprecedented popularity and influence. Congress may argue that the Act’s primary purpose is to prevent applications controlled by adversaries from exerting malign influence on the United States and its citizens. However, among the listed adversaries (i.e., China, Russia, Iran, and North Korea), TikTok is the only specific entity mentioned [22]. This focus makes it difficult to argue that the Act does not intend to single out a specific firm for punishment.
Furthermore, the Act is based on the presumption of the Chinese government’s control over TikTok. While concerns about data security and foreign influence are valid, critics argue that Congress has not provided substantial evidence proving direct control by the Chinese government over TikTok’s operations or data handling practices. This presumptive approach, without conclusive evidence, adds to the constitutional concerns surrounding the Act.
In conclusion, the fate of the TikTok Act remains uncertain and depends on further legal scrutiny and evidence presented in court. The Act’s passage comes at a time of heightened tensions in Sino-American relations, which adds complexity to the legal and political landscape. The case raises important questions about the balance between national security concerns and First Amendment protections. As this issue progresses through the legal system, it will be crucial to carefully consider the implications for free speech, data privacy, and international business relations. The courts will need to weigh the government’s national security arguments against ByteDance’s claims of unconstitutional targeting and violation of due process. Ultimately, the resolution of this case may have far-reaching consequences for the regulation of international technology companies and the scope of executive power in matters of national security.
Notes:
[1] It will be referred to as the Act.
[2] “TIKTOK INC. Et Al v. TRUMP Et al, No. 1:2020cv02658 – Document 30 (D.D.C. 2020), Justia Law (2020).
[3] “An Act Banning TikTok in Montana; Prohibiting a Mobile Application Store from Offering the TikTok Application to Montana Users; Providing for Penalties; Providing for Enforcement Authority; Providing Definitions; Providing for Contingent Voidness; and Providing a Delayed Effective Date” (2023), https://leg.mt.gov/bills/2023/BillPdf/SB0419.pdf.
[4] Ibid.
[5] Walrath-Holdridge, Mary. “Who Voted to Ban TikTok? See How Your Representative Voted in the US House Wednesday” (USA Today, March 14, 2024), https://www.usatoday.com/story/news/politics/2024/03/13/who-voted-to-ban-tikttok-in-us-house-of-representatives/72956250007/.
[6] “H.R.815 – 118th Congress (2023-2024): Making Emergency Supplemental Appropriations for the Fiscal Year Ending September 30, 2024, and for Other Purposes.,” Congress.gov § (n.d.), https://www.congress.gov/bill/118th-congress/house-bill/815.
[7] TIKTOK INC. Et Al v. TRUMP Et al, No. 1:2020cv02658 – Document 30 (D.D.C. 2020), Justia Law (2020).
[8] 303 Creative LLC v. Elenis, Oyez (n.d.).
[9] Alario v. Knudsen, Casetext (2023).
[10] Ibid.
[11] Petition for Review of Constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act (May 7, 2024).
[12] Lamont v. Postmaster General, 381 U.S. 301 (1965), 491 Justia Law § 381 U.S. 301 (n.d.).
[13] NetChoice, LLC v. Paxton (n.d.).
[14] Ibid.
[15] United States v. O’Brien, 391 U.S. 367 (1968) (U.S. Supreme Court May 27, 1968).
[16] “Testimony before the U.S. House Committee on Energy and Commerce” (2023).
[17] “H.R.7521 – 118th Congress (2023-2024): Protecting Americans from Foreign Adversary Controlled Applications Act,” Congress.gov § (2024), https://www.congress.gov/bill/118th-congress/house-bill/7521.
[18] “中华人民共和国国家情报法 (National Intelligence Law of PRC)” (2017), https://www.chinalawtranslate.com/en/national-intelligence-law-of-the-p-r-c-2017/.
[19] “Fact Check: The Truth about H.R. 7521, the Protecting Americans from Foreign Adversary Controlled Applications Act,” House Committee on Energy and Commerce (Energy & Commerce Committee, March 12, 2024). https://energycommerce.house.gov/posts/fact-check-the-truth-about-h-r-7521-the-protecting-americans-from-foreign-adversary-controlled-applications-act.
[20] Hendrix, Justin. “Is TikTok ‘Digital Fentanyl?’ | TechPolicy.Press,” Tech Policy Press, December 19, 2022. https://www.techpolicy.press/is-tiktok-digital-fentanyl/.
[21] Miller, Gabby. “Transcript: TikTok Inc. V. Merrick Garland Oral Arguments in the DC Court of Appeals,” Tech Policy Press, September 17, 2024. https://www.techpolicy.press/transcript-tiktok-inc-v-merrick-garland-oral-arguments-in-the-dc-court-of-appeals/
[22] “H.R.7521 – 118th Congress (2023-2024): Protecting Americans from Foreign Adversary Controlled Applications Act,” Congress.gov § (2024), https://www.congress.gov/bill/118th-congress/house-bill/7521.
Sources:
[1] 303 Creative LLC v. Elenis, Oyez (n.d.).
[2] Alario v. Knudsen, Casetext (2023).
[3] An Act Banning TikTok in Montana; Prohibiting a Mobile Application Store from Offering the TikTok Application to Montana Users; Providing for Penalties; Providing for Enforcement Authority; Providing Definitions; Providing for Contingent Voidness; and Providing a Delayed Effective Date (2023). https://leg.mt.gov/bills/2023/BillPdf/SB0419.pdf.
[4] “Fact Check: The Truth about H.R. 7521, the Protecting Americans from Foreign Adversary Controlled Applications Act.” House Committee on Energy and Commerce. Energy & Commerce Committee, March 12, 2024. https://energycommerce.house.gov/posts/fact-check-the-truth-about-h-r-7521-the-protecting-americans-from-foreign-adversary-controlled-applications-act.
[5] H.R.815 – 118th Congress (2023-2024): Making Emergency Supplemental Appropriations for the Fiscal Year Ending September 30, 2024, and for Other purposes., Congress.gov § (n.d.). https://www.congress.gov/bill/118th-congress/house-bill/815.
[6] H.R.7521 – 118th Congress (2023-2024): Protecting Americans from Foreign Adversary Controlled Applications Act, Congress.gov § (2024). https://www.congress.gov/bill/118th-congress/house-bill/7521.
[7] Hendrix, Justin. “Is TikTok ‘Digital Fentanyl?’ | TechPolicy.Press.” Tech Policy Press, December 19, 2022. https://www.techpolicy.press/is-tiktok-digital-fentanyl/.
[8] Lamont v. Postmaster General, 381 U.S. 301 (1965), 491 Justia Law § 381 U.S. 301 (n.d.).
[9] Miller, Gabby. “Transcript: TikTok Inc. V. Merrick Garland Oral Arguments in the DC Court of Appeals.” Tech Policy Press, September 17, 2024. https://www.techpolicy.press/transcript-tiktok-inc-v-merrick-garland-oral-arguments-in-the-dc-court-of-appeals/.
[10] NetChoice, LLC v. Paxton (n.d.).
[11] Petition for Review of Constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act (May 7, 2024).
[12] Testimony Before the U.S. House Committee on Energy and Commerce (2023).
[13] TIKTOK INC. Et Al v. TRUMP Et al, No. 1:2020cv02658 – Document 30 (D.D.C. 2020), Justia Law (2020).
[14] United States v. O’Brien, 391 U.S. 367 (1968) (U.S. Supreme Court May 27, 1968).
[15] Walrath-Holdridge, Mary. “Who Voted to Ban TikTok? See How Your Representative Voted in the US House Wednesday.” USA Today, March 14, 2024. https://www.usatoday.com/story/news/politics/2024/03/13/who-voted-to-ban-tikttok-in-us-house-of-representatives/72956250007/.
[16] 中华人民共和国国家情报法 (National Intelligence Law of PRC) (2017). https://www.chinalawtranslate.com/en/national-intelligence-law-of-the-p-r-c-2017/.
JHULR 
Leave a comment