Dear Government: Stop Trying To Make TikTok Bans Happen

Having recently watched the new Mean Girls movie, the classic "stop trying to make fetch happen" line—said by main mean girl Regina George to a friend intent on injecting new slang into their lexicon—looms fresh in my mind. So that's the first thing I thought when I heard about yet another attempt to ban TikTok. At this point, attempts to ban TikTok are nearly as stale as Mean Girls references.

Politicians won't stop trying to make a TikTok ban happen, however.

We went here with Trump, who tried to ban TikTok via executive order in 2020. (The courts said no, and the Biden administration rescinded the order.) We went here with Montana, which passed a TikTok-banning law last year. (The court said no, at least preliminarily, though Montana is appealing.) We went here with multiple bills, including one in 2022 from Florida Republican Sen. Marco Rubio and one in 2023 from Virginia Democratic Sen. Mark Warner. (Both broad-reaching messes, and neither bill went anywhere after being introduced.)

Now, here we are again, with a bipartisan bill from Reps. Mike Gallagher (R–Wis.) and Raja Krishnamoorthi (D–Ill.), who head up the House of Representatives' Select Committee on the Chinese Communist Party. Committee Chair Gallagher and ranking Democrat Krishnamoorthi announced their bill on Tuesday, calling it the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA?).

For starters, the measure would ban U.S. app stores and web-hosting companies from letting people access TikTok, by declaring TikTok a "foreign adversary controlled application" and making the provision of such illegal.

Multitudes of Suck

That first bit is bad enough. It would choke off Americans' access to a popular media platform based on vague allegations of wrongdoing, in a move that offends both the First Amendment and due process.

But that's not all the Gallagher-Krishnamoorthi bill would do.

Like some of its predecessors, it takes broader aim at apps with ties to "foreign adversaries" (a group currently defined as North Korea, China, Russia, and Iran). To this effect, it gives the president power to declare a social media app off-limits if it's tied to an adversary.

Expanding presidential power to restrict Americans' access to tools for getting and disseminating information—what could go wrong? 

The measure would obviously be ripe for abuse. For example: say another app like TikTok comes along, and it's proving a really useful campaigning tool for third-party and independent candidates. A Republican or Democratic president could then block access to it. Or say some app is becoming a popular place for organizing progressive protests, or criticizing conservatives, or some such thing. A certain notoriously thin-skinned politician who might regain power would likely be itching to shut it down—and under this bill, could.

Even short of administrations using the power for self-serving ends, we're still looking at a stunning situation. Remember, we're not talking about apps found to be violating U.S. laws in some particular way. We're talking the power to declare an app off limits because it has ties to a country we don't like (unless the app parts ways from its problematic parent company or leadership in a way the president deems fit).

That's the kind of stuff Russia and China do. It has no place in the United States.

Broad Banning Power

The bill declares it unlawful "to distribute, maintain, or update (or enable the distribution, maintenance, or updating of) a foreign adversary controlled application."

A "foreign adversary controlled application" is defined as 1) TikTok, ByteDance (TikTok's parent company), or a subsidiary or successor of either or 2) any app can that the president says is "controlled by a foreign adversary" and presents a national security threat. (The bill also specifies that if the bit simply declaring TikTok illegal doesn't hold up in court, the president can still declare TikTok illegal.)

Hold up, you might be thinking—controlled by a foreign adversary sounds scary. That goes beyond merely having ties to a foreign adversary (which is how I phrased it above). So let's look at the definition of "controlled by a foreign adversary."

The term "controlled by a foreign adversary" means, with respect to a covered company or other entity, that such company or other entity is—

(A) a foreign person that is domiciled in, is headquartered in, has its principal place of business in, or is organized under the laws of a foreign adversary country;

(B) an entity with respect to which a foreign person or combination of foreign persons described in subparagraph (A) directly or indirectly own at least a 20 percent stake; or

(C) a person subject to the direction or control of a foreign person or entity described in subparagraph (A) or (B).

As you can see, it would deem apps potentially off limits merely for being launched by a person or entity based in certain countries, partially owned by someone in those countries, or "subject to the direction" of someone based in one of those countries. That's nuts.

Say a Chinese citizen studying or working in the U.S. legally helps launch an app with four U.S. friends. That Chinese citizen eventually goes back to China and retains a 20 percent stake in what becomes a popular social media platform. Boom—the app can be declared illegal.

The "national security" threat language might seem limiting. But "national security" is actually a pretty vague concept, and we've seen it stretched, many times, to encompass whatever authorities want the right to regulate, outlaw, or surveil. Besides, it's the kind of thing ordinary folks can't really challenge because people in power can simply say that the reason why something is a national security threat is classified. So, in practice, I don't think the "national security threat" plank puts much of a limit on banning apps even tangentially tied to China, Russia, etc.

Also notable here: the bill bans enabling "the distribution, maintenance, or updating of a foreign adversary controlled application." Like last year's RESTRICT Act, this could implicate services—like virtual private networks (VPNs)—that help people download or access foreign apps forbidden by U.S. law.

Selectively Targeting Communication Platforms

Consider also that the bill would be targeting only large social media apps. Americans could still download other sorts of apps from companies with ties to foreign adversaries (which, if the concern is data privacy or surveillance, could be just as likely to pose a problem.) They could still use and view apps and websites tied to foreign adversaries when a product's "primary purpose is to allow users to post product reviews, business reviews, or travel information and reviews" (products that, again, could just as easily present privacy concerns). And they could still access information—and propaganda—from foreign adversaries in other ways, including via foreign media websites and foreign entities that utilize U.S. social media to spread their content.

This selective targeting of social media apps—a type of technology intimately bound up with free speech rights—seems certain to render the measure constitutionally suspect.

The measure appears, in legal speak, to be both overbroad and underinclusive.

But the bill gives Gallagher, Krishnamoorthi, and the bill's other 18 co-sponsors a chance to grandstand about the evils of the Chinese Communist Party and the evils of TikTok. So here we are.

The bill is "expected to be taken up at an Energy and Commerce Committee hearing Thursday," Reuters reports. You can find the full text here.

"We're deeply disappointed that our leaders are once again attempting to trade our First Amendment rights for cheap political points during an election year," said Jenna Leventoff, senior policy counsel at the American Civil Liberties Union (ACLU). "Just because the bill sponsors claim that banning TikTok isn't about suppressing speech, there's no denying that it would do just that. We strongly urge legislators to vote no on this unconstitutional bill."

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