Protecting Americans from Foreign Adversary Controlled Applications & The First Amendment

March 12, 2024

by Kim Keenan, Chief Policy Officer of The Digital Progress Institute

On March 7, 2024, something seismic happened in Congress. In an election year where the stakes are high and political division is the norm, House Republicans and Democrats came together to address an unprecedented threat to our nation’s security, children, and democracy by unanimously supporting the Protecting Americans from Foreign Adversary Controlled Applications Act (the Act).

The Act, if passed, would make it “unlawful for an entity to distribute, maintain, or update . . . a foreign adversary controlled app[]” in the United States. The Act has the practical effect of preventing a Chinese-based tech company directed by the Chinese government, namely ByteDance, from having any ownership interest in a social media app targeted at Americans, specifically TikTok. The bottom line: If TikTok doesn’t divest out of ByteDance, it will not be allowed to operate in the U.S. Also, neither Google nor Apple could host TikTok on their app stores. Plain and simple.

It’s undeniable that TikTok is more than just an innocuous dancing app. TikTok collects your voice, face, tracks your location, and has been reported to ignore your device’s privacy settings to listen in even when you’re not using it. This sophisticated tool is designed to monitor your every move and collect your physical characteristics much like other social media companies do, like Meta or Snapchat. But TikTok has one troubling distinction from its competitors—the Chinese government may be the one watching. Currently, the FBI and U.S. Department of Justice are investigating how ByteDance—TikTok’s Chinese parent company—uses the app to spy on American journalists.

Worse, TikTok’s U.S. representatives have been entirely opaque on these matters and likely lied to Congress about its CCP connection under oath. This is why a bipartisan group of governors and Congress unanimously banned the app on government devices in 2022. This led to more bipartisan calls in the Senate to ban it from our markets entirely given the extraordinary risk TikTok poses.

Such potential access from a foreign government to Americans’ data drove the Biden Administration to call for a full ban of the app in our domestic markets. President Biden’s call for a ban harkens back to what the Trump Administration attempted in its 2020 executive order. President Biden’s position has been steadfast, stating, “If they pass it, I’ll sign it.”

For those who take issue with the Act’s divestiture requirement on First Amendment grounds, the First Amendment does not prevent the government from requiring a divestiture on TikTok on the basis of national security. Courts have been very clear on this issue. The government would be acting here based on TikTok’s conduct (namely, its actions that present an unacceptable national security threat)—not based on the content of TikTok’s speech or that of its users.

Courts have consistently distinguished between conduct and speech to determine whether the First Amendment is applicable or prohibitive towards the enactment or enforcement of a particular policy. Indeed, in the U.S. Supreme Court case Arcara v. Cloud Books, Inc., the government shut down an adult bookstore for health violations because its owner used his store to facilitate prostitution. The bookstore argued that shutting down the bookstore violated the First Amendment. The Supreme Court disagreed. Even though we think of a bookstore as a quintessential venue for First Amendment activity, the Supreme Court ruled that the First Amendment did not prevent the government from shutting down the bookstore because the government was acting based on the owner’s decision to engage in prohibited, non-speech conduct, in this case, the solicitation of prostitution. Here TikTok’s practices similarly do not implicate the First Amendment.

The Act wisely targets TikTok’s conduct by focusing on a divesture as opposed to the content occurring on the app. Indeed, the law makes clear that TikTok can operate in the US if it cuts ties with ByteDance. Given that ByteDance has shown that it uses TikTok to spy on Americans, and the ban is not attempting to prohibit certain users or speech on other platforms (e.g., Instagram, Snapchat, etc.), the law will most likely pass constitutional muster under the First Amendment. Finally, the First Amendment and the Constitution are agnostic to banning TikTok, but the Act, in particular, is even more narrowly tailored than any other proposal. It asks only that TikTok to detach itself from a company with known cyber security threats. As we foray deeper in the digital age, the Act is a protection we cannot afford to lose. When everyone in Congress agrees, we all win.

Kim Keenan is a founding director and Chief Policy Officer of the Digital Progress Institute and a nationally recognized attorney and mediator/arbitrator. She is a former General Counsel and Secretary of the National Association for the Advancement of Colored People.