Setting the Record Straight on the TikTok Divestiture Bill

March 18, 2024

by Joel Thayer, President of the Digital Progress Institute

352 House Republicans and Democrats came together to move the Protecting Americans from Foreign Adversary Controlled Applications Act (the Act) forward. This bill addresses an unprecedented threat to our nation’s security, children and democracy, i.e., the Chinese government’s control over TikTok.

But, like any bill, folks have questions. So we thought we’d clear some things up.

There have been a lot of concern as to whether the Act will open the door for Executive Branch overreach. Specifically, a few people have asked me whether the Act gives the Administration unfettered authority to shut down any app with which the President disagrees, like X or Telegram.

The short answer is no.  Not only does the Act not grant that type of sweeping authority to the Executive Branch, the Act includes multiple, express constrains that directly prohibit the President from lawfully doing that.

The Act does not apply to any app that a President may not like

As an initial matter, the Act only applies to apps that are under the “direction” and “control” of a foreign adversary.  The Act then expressly limits the universe of potential countries to just four: China, North Korea, Russia, and Iran. 

Direction or control is a common legal phrase, used in a variety of statutes. See, e.g., 18 U.S.C. § 2339(B)(h); 15 U.S.C. § 4651(6)(B)(iii); 18 U.S.C. § 951(d); 22 U.S.C. § 611(c)(1); 18 U.S.C. § 175(b)(d)(G)(ii), (I); 15 C.F.R. § 7.2. The language would require the government “establish” that the foreign adversary-controlled company designated in fact “directed or controlled [the company’s] actions.” See United States v. Chung, 659 F.3d 815, 823 (9th Cir. 2011). This is high bar means more than “simply [] acting in accordance with foreign interests or [] privately pledg[e] allegiance” to that foreign interest. United States v. Alshahhi, No. 21-CR-371 (BMC), 2022 WL 2239624, at *4 (E.D.N.Y. June 22, 2022).

The Act places myriad restraints on the President to determine whether an entity is a foreign-adversary-controlled app not present in other enactments

Even where the Act mentions the President, it imposes a restraint on what he can do. Ironic to criticisms arguing that this is a slippery slope to more presidential authority, the Act would have the practical effect of limiting the President’s authority to only apps that are controlled by China, North Korea, Russia, and Iran.

The threshold for the President to determine that an app qualifies as a foreign-adversary-controlled application is very high. The Act requires a finding that the foreign adversary controlled app poses a “significant threat to national security.” What’s more, the Act requires the President to go through an extremely difficult interagency process to even show that a particular app is owned by a statutorily defined set of governments and is controlled in the same way China owns TikTok. After that interagency investigation, he must send a report articulating his reasoning to Congress 30 days before his determination to ensure he is not abusing his authority. The Act even requires the President to put out a public notice of his determination for everyone to see.

The narrow role of the Attorney General

The Attorney General can only enforce the Act–and not even immediately. Before the Attorney General can act on a new determination from the President, he must wait until the 180-days compliance timeframe ends.

Section 2(f) of the Act makes clear that the Attorney General cannot use the Act’s provisions as a justification to go after users or impact any other federal law, which, by its nature, includes using the Act to abridge users’ rights under the Constitution.

The Act makes courts the legal backstop

The Act created 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 under this Act immediately in the D.C. Circuit. This would subject the President’s actions to an arbitrary and capricious review and a whole host of restrictions under the purview of administrative law, like the major questions doctrine.

The Act does not apply to X and Telegram

Let’s do away with the easy objection first, X is outside the scope of the Act because it has nothing to do with China, North Korea, Russia, or Iran.

Nor would the law apply to Telegram because the available evidence shows that it is not controlled by the Russian government. Remember, ownership by a corporation with ties back into a foreign adversary is not a triggering event under the Act, control is. The President must show that the app is controlled in the same way China controls TikTok. Given that Telegram is encrypted and the Russian government once banned Telegram for 2 years for not decrypting it, there is no case to be made for arguing that Telegram is covered.

For more questions about Digital Progress Institute’s views on this or the Act in general, please reach out to Joel Thayer at joel@digitalprogress.tech