Protecting Americans from Foreign Adversary Controlled Applications Act
United States legislation
Protecting Americans from Foreign Adversary Controlled Applications Act
Long title
An Act to protect the national security of the United States from the threat posed by foreign adversary controlled applications, such as TikTok and any successor application or service and any other application or service developed or provided by ByteDance Ltd. or an entity under the control of ByteDance Ltd.
The bill was lobbied heavily by TikTok and ByteDance, as well as several advocacy groups and corporations. Critics of the act say a forced sale under the threat of a ban may violate the First Amendment and that a comprehensive privacy legislation would be more appropriate than singling out TikTok. There is a perception that the bill was pushed through due to pro-Palestinian content on the platform in the context of the Israel–Hamas war, which some lawmakers who supported the legislation indicated was a motivator. TikTok and ByteDance filed a lawsuit against the legislation on May 7, 2024. A separate lawsuit by several TikTok content creators was filed a week later.
TikTok has more than 150 million monthly users in the U.S. The company has come under scrutiny since 2020, with American national security officials and lawmakers warning that its parent ByteDance's ties to China are national security risks and the Chinese government could access TikTok data to spy on Americans. Previous efforts to ban the app were stalled due to policy changes after Biden entered office in 2021 and courts rulings against bans.[1][2][3]
According to past reports and various allegations ByteDance employees in China have had access to American user data.[7][8] Nazak Nikakhtar, a former Trump Commerce Department official and partner at Wiley Rein, told Axios that Beijing-based ByteDance is beholden to the 2017 National Intelligence Law that could give the Chinese government access to TikTok user data even if stored elsewhere and that even with a forced sale, TikTok would still need to completely scrub its source code.[9]
So far these concerns are largely hypothetical.[10][11] To date, there is a lack of public evidence to show Chinese government accessing American user data or TikTok sharing such information with Chinese authorities.[11][12] According to computer security specialist Bruce Schneier, TikTok's ownership may not be the real issue. Recent examples show that influence operations can be conducted without ever owning a platform, such as how Russia interfered in the 2016 US elections in part through Facebook.[13] A TikTok spokesperson said the company regularly takes action against covert influence networks, adding that after "more than 150 elections globally" it continues to work with electoral commissions, experts and fact-checkers during the 2024 election year.[4]
Pro-Palestine hashtags
In 2023, an apparent spike in pro-Palestine content appeared on TikTok following the bombing of the Gaza Strip in response to the Hamas-led attack on Israel.[14][15]Hamas is classified as a terrorist group by the U.S. government.[16] Representative Mike Gallagher (R-WI) decried "rampant pro-Hamas propaganda on the app" in his push for a ban. This was echoed by senators Josh Hawley and Marco Rubio.[14][15]Gallup polling data going back to 2010, shows that younger Americans, who are more likely to use TikTok, show greater sympathy for Palestine than Israel.[15][17]
The company also denied intentionally boosting pro-Palestine hashtags, saying regions such as the Middle East and South East Asia account for a significant proportion of its user views and content, and it is easy to cherry pick hashtags to fit certain narratives. Some for example may have fewer videos but receive more views, or be much older than newer tags.[15]
Provisions
The act prohibits the distribution, maintenance, or updating of "foreign adversary-controlled applications", including the facilitation of services (such as hosting and distribution via an application store) that enable such activities. This effectively bans affected services from the U.S. market.[18][1][19]
Restrictions under the act take effect a minimum of 270 days[20] after it is enacted for ByteDance and TikTok or a minimum of 270 days after a designation is issued by the president for other potential companies. The president can extend that deadline once by 90 days. Before the time runs out, the affected application must provide the ability for users to export their data from the service upon request. The act no longer applies if the application is divested in such a way as to no longer be controlled by a foreign adversary, as determined by the president of the United States through an interagency process.[18]
Social networking service under this act refers to "a website, desktop application, mobile application, or augmented or immersive technology application" that allows registered users to "generate, share, and view text, images, videos, real-time communications, or similar content" and has at least one million active users in the United States. Services used to post customer reviews and travel information are excluded.[18] "Controlled by a foreign adversary" includes any person, company or other entity domiciled in or organized under the laws of a foreign adversary, as well as any other entity that they own at least 20 percent stake in or otherwise direct or control.[19][18]
Legislative history
House of Representatives
On March 13, 2024, PAFACA was passed by the House of Representatives.[2] The vote was 352 to 65, with 50 Democrats and 15 Republicans voting against the bill.[22]
On April 20, 2024, the House passed a foreign aid package (H.R. 8038), the 21st Century Peace through Strength Act, as part of Public Law 118-50. The bill incorporates a modified version of PAFACA, with the time allowed for a sale to complete increased from 180 days to a minimum of 270 days. By bundling a potential TikTok ban or divestment with foreign aid, which has traditionally enjoyed bipartisan support in both chambers, the House pressured the United States Senate to act quickly with a combined vote, because rewriting the bill to exclude the provisions on TikTok would delay foreign aid.[20][23]
Senate
Senator Rand Paul opposed the bill on First Amendment grounds and said he would hold it.[24] His opposition prevented a similar bill (S. 85) from proceeding in 2023 but was not expected to be able to stop the foreign aid package.[24][25] On April 23, 2024, the Senate passed the law, which included the 21st Century Peace through Strength Act along with three other bills, 79–18.[26] Regarding the potential of a political backlash, Senate Majority leaderChuck Schumer told reporters that House Republicans jammed the TikTok amendment into the $95 billion foreign aid package that could no longer wait and had to be "passed as quickly as possible". Republican political strategists pointed to the large Democrat following on TikTok and said that Biden, who signed the bill, will likely take the brunt of any blame.[27]
Before the vote, TikTok had been encouraging users to call representatives with a full-screen notification about the upcoming bill, causing many congressional offices to be inundated with calls. This led to backlash from some lawmakers.[32][33] During the House debate, various lawmakers stated that TikTok sent out a pop-up forcing its users to call their representative. The call for users to contact lawmakers was optional, but that might not have been obvious at first glance from the graphical user interface.[34][35] The United States House Select Committee on Strategic Competition between the United States and the Chinese Communist Party stated that TikTok's push for users to contact lawmakers may have been illegal and called for the Federal Trade Commission to investigate.[36]
On March 11, 2024, former president Donald Trump denounced the bill, claiming that it would give too much power to Facebook and its owner Meta.[37][38] Despite Trump denouncing the bill, many of his political allies voted in favor of it.[39] Other supporters of a ban included hedge fund manager Bill Ackman and former Facebook executive Samuel Lessin.[40]
Shortly after the House of Representatives vote, a spokesperson for China's Foreign Ministry said the bill was putting the U.S. on "the opposite side of the principle of fair competition and international economic and trade rules."[32] Representatives from the Chinese embassy met with U.S. congressional staffers to lobby against the legislation.[41] Sources told The Wall Street Journal that the Central Propaganda Department of the Chinese Communist Party instructed the country's state media outlets to increase positive coverage of ByteDance, although Beijing's overall response so far appears to be muted.[42]
Some TikTok creators mobilized against the legislation.[43] Individuals interviewed by CNN reacted negatively to the bill.[11][44]North Carolina Representative Jeff Jackson, who had grown a large following on TikTok, voted in favor of the bill,[45] leading to backlash from users on the app that resulted in Jackson losing approximately 200,000 followers.[46][47]
Advocates and experts have called for Congress to pass comprehensive privacy legislation, rather than a bill focused mostly on TikTok.[44]Jameel Jaffer of the Knight First Amendment Institute said Congress can address the problems associated with TikTok "without restricting Americans' access" to it by "passing a comprehensive privacy law". Evan Greer of the digital rights advocacy group Fight for the Future called for "strong privacy legislation to protect our data from all Big Tech companies" and governments.[44] Justin Sherman, an adjunct professor at Duke University, said that TikTok's ownership by ByteDance "should prompt real national security questions" but "the US also needs comprehensive privacy and cybersecurity regulations for all companies." Critics of the legislation have outlined that American platforms such as Facebook and Twitter have been targeted by foreign influence operations, including by the Chinese government, in the recent past. As lawmakers focused their attention on TikTok, Facebook began allowing political ads again that questioned the 2020 U.S. presidential election results.[44]
A group of free speech and civil rights petitioners including the ACLU argued that the government "cannot accomplish indirectly what it is barred from doing directly". A potential ban to force a sale may violate the First Amendment, including prohibiting app stores from carrying TikTok, if the threat to national security does not justify such measures or if they are ineffective at addressing the underlying security concerns.[30]
House Majority Leader Steve Scalise reportedly pressured K Street lobbyist groups with ties to TikTok/ByteDance to disassociate from the company, under threat of investigation by the House Select Committee on the Chinese Communist Party and prohibition from holding future meetings with congressional offices. On May 9, 2024, trade association NetChoice removed TikTok (which the firm had represented since 2019) as a member, after previously defending it in other efforts to ban or force divestiture of the platform. (Four days earlier, NetChoice filed an amicus brief requesting that the Ninth Circuit Court of Appeals uphold an injunction against Montana SB 419, a 2023 law that sought to ban TikTok from operating in the state, which was blocked by U.S. District Court Judge Donald Molloy in November 2023 before it was enacted.)[48][49]
Israel–Hamas war
Some opponents to the bill theorized that the renewed momentum for a ban stemmed from a belief that the unpopularity of Israel and the United States during the ongoing Israel–Hamas war grew because of TikTok, although evidence for that belief is unclear.[40][50] The Jewish Federations of North America expressed support for the proposed ban ahead of the House vote, stating that "social media is a major driver" of increased antisemitism in the United States and that "TikTok is the worst offender by far."[51] Sandra Tamari of Adalah said that if antisemitism was a concern, supporters of the TikTok ban would have also focused on X, which has many anti-Jewish conspiracies. The real reason, according to Tamari, is because "they don't have control over TikTok", which has allowed Palestinian voices to be heard directly.[52]
Edward Ahmed Mitchell, the national deputy director of the Council on American-Islamic Relations, said it would be "hypocritical for politicians" to restrict access to TikTok because of people expressing their support for Palestinian human rights on a platform that is less restrictive of such views, adding that young people have become more sympathetic to the Palestinians after getting information from outside of mainstream media.[14]
In May 2024, Senator Mitt Romney and House Representative Mike Lawler (both of whom backed the legislation) indicated that the PAFACA's passage was motivated by scrutiny from lawmakers supportive of Israel to criticism of both the Israel–Hamas war, and the Israel and United States governments' handling of the conflict, blaming TikTok in particular and social media more generally for shaping public opinion against Israel and fomenting protests opposing the war. Such claims spurred criticism from free speech and civil liberties advocates that the bill was intended as an implicit act of viewpoint discrimination prohibited by the First Amendment.[53][54][55]
TikTok, et al. v. Garland is a lawsuit brought by social media company TikTok against the United States government. Chinese internet technology company ByteDance and its subsidiary TikTok allege that the Protecting Americans from Foreign Adversary Controlled Applications Act, an act of Congress that bans certain apps unless sold by their owners, violates the First Amendment by imposing an unfeasible deadline for divestment, effectively removing the app.
^ abCulhane, Mallory (March 11, 2024). "The Chinese government is using TikTok to meddle in elections, ODNI says". Politico. Archived from the original on April 17, 2024. Retrieved April 25, 2024. ODNI alleges that "TikTok accounts run by a PRC propaganda arm reportedly targeted candidates from both political parties during the U.S. midterm election cycle in 2022,"...To date, there have been no concrete examples publicly provided showing how TikTok poses a national security threat, though lawmakers on the House Energy and Commerce Committee received a closed-door hearing last Thursday from ODNI, the FBI and the Department of Justice.
^"House approves sell-or-be-banned TikTok measure, attaching it to foreign aid bill". WPR. Archived from the original on April 27, 2024. Retrieved April 27, 2024. Those concerns remain largely hypothetical. TikTok is owned by Chinese tech giant ByteDance, yet there is no publicly available evidence that government officials have ever influenced what Americans see on the app, nor any proof that officials in China have spied on U.S. citizens through TikTok.
^ abcFung, Brian (March 12, 2024). "TikTok creators fear a ban as the House prepares to vote on a bill that could block the app in America". CNN. Archived from the original on March 14, 2024. Retrieved March 14, 2024. Cybersecurity experts say that the national security concerns surrounding TikTok remain a hypothetical—albeit concerning—scenario. US officials have not publicly presented evidence that the Chinese government has accessed the user data of US TikTok users. ... a strain of fear and racism, echoing many other Asian-Americans who have looked on with growing alarm. Creators interviewed by CNN say they have not personally viewed any content on TikTok that could be described as Chinese propaganda, however. Multiple creators say the House bill ... would almost certainly disrupt the organic communities they've built.
^Klippenstein, Ken (March 16, 2024). "TikTok Threat Is Purely Hypothetical, U.S. Intelligence Admits". The Intercept. Archived from the original on April 23, 2024. Retrieved April 22, 2024. The problem with TikTok isn't related to their ownership. In 2016 Russia did this with Facebook and they didn't have to own Facebook—they just bought ads like everybody else. Trump signed a covert action order authorizing the CIA to use social media to influence and manipulate domestic Chinese public opinion and views on China.
^Lin, Liza; Chun Han, Wong (April 26, 2024). "Why China Is Holding Its Fire as U.S. Moves to Ban TikTok". The Wall Street Journal. Archived from the original on April 26, 2024. Retrieved April 26, 2024. The Communist Party's propaganda department, which regularly sends reporting guidelines to state-owned media outlets, recently instructed such media to amp up their reporting on TikTok's U.S. woes in favor of ByteDance, according to people familiar with the matter.
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