The Protecting Americans from Regulatory Applications by Foreign Adversaries Act passed overwhelmingly in the House of Representatives last week. The bill would make it illegal for foreign adversaries (defined specifically to include only the governments of China, Iran, Russia, and North Korea) to own or operate apps or websites in the United States.
The poster child for this bill is TikTok, which is owned by ByteDance, a Chinese government affiliate that literally has an internal committee of the Chinese Communist Party as part of its governance structure.
Resolving this issue is easy, as the law simply implements foreign ownership restrictions to enforce divestment requirements at the app layer. This follows a proven legal framework that the United States has implemented in a variety of contexts. Indeed, the United States applied Restrictions on foreign ownership in telecommunications services, broadcasters, banks, energy, the list goes on.
This is not the first time the United States has imposed a forced sale for these reasons. In fact, in 2020, the Committee on Foreign Investment in the United States mandated the use of LGBTQ dating apps. grinder As you might have guessed, it’s an exit from Kunlun Technology, a high-tech company based in China, citing national security.
So what is the friction?
TikTok, likely at the behest of its Chinese government regulators, is encouraging all officials in Washington, D.C., to repeat empty talking points. These arguments fall into two broad categories: government overreach and constitutional concerns. Unfortunately for TikTok and China, both of these objections are beside the point.
The crime of government overreach is a serious problem. TikTok supporters have proposed that the bill would give the White House unfettered power to shut down apps it disagrees with, such as X and Telegram. But the law’s language and structure directly prohibit the president from legally doing so.
Even when the bill refers to the president, it imposes constraints on the president’s actions. The bill would make it extremely difficult for the president to show that a particular app is legally owned by a set of governments and controlled in the same way that China owns TikTok. It is required to go through a significant interagency process. For example, the phrase “direction and control” used in this law is a legal term with a specific narrow meaning that sets a high bar for future litigation beyond TikTok. The bill also requires the president to publicly announce his resolution for everyone to see.
Even after all this, the law creates another legal backstop to keep the administration on track. Specifically, the law’s judicial review provisions allow affected companies, such as ByteDance and TikTok, to immediately challenge enforcement and designation in court.
The constitutional challenge is equally interesting.
First, it is already intuitive to the average American that foreign governments, especially our greatest enemies, do not have First Amendment rights. But more importantly, the bill targets TikTok’s failed divestment actions, not the content it hosts. In fact, the law makes clear that TikTok can still do business in the United States even if it cuts ties with ByteDance.
Additionally, the Attorney General cannot justify this law to go after users or affect other federal laws, and by its very nature cannot use this law to deprive users of their constitutional rights. It also includes using. Given that ByteDance showed that; Purpose Because TikTok is intended to spy on Americans and its ban does not seek to ban specific users or speech on other platforms (such as Instagram or Snapchat), this law is a First Amendment violation. most likely to pass a constitutional convention based on . Or maybe we’ll just avoid the problem altogether, like we did before. The same thing happened when it banned China Mobile and Huawei and demanded that Grindr divest.
The law is also far from an achievement bill (a term used to describe laws that punish individuals for past crimes without trial), which the Constitution prohibits. However, the constitutional prohibition does not apply to laws regulating future crimes, but only to past crimes.
For example, the United States has banned future sales of Chinese telecommunications giant Huawei because of its ties to the Chinese government.Even Huawei sued On the theory of legislation achieved in federal courts. The district court disagreed with Huawei, holding that Congress’ action against Huawei was constitutional because Congress had not refused to try Huawei for past crimes. Instead, it applies only to transactions that have not yet taken place, and therefore falls outside the scope of the types of penalties that the Constitution seeks to protect. The same applies here. The law isn’t even enforceable against his TikTok for six months after it’s enacted, and only applies to subsequent violations.
In short, this bill provides a targeted and constitutionally sound framework to address the digital attacks that Americans are under from China. If these feeble objections are the only thing standing in its way, we implore the senators not to let their great man become the enemy of good. Our national security and democracy depend on it. Please pass this bill.
Mark Meador is a partner at Kressin Meador and a visiting scholar at the Heritage Foundation.. Joel Thayer is director of the Digital Progress Institute and a technology and communications attorney in Washington, DC.
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