Protecting Americans From Foreign Adversary Controlled Applications Act

The Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA) is an act of Congress that was signed into law on April 24, 2024, as part of Public Law 118-50. It would ban social networking services within 270 to 360 days if they are determined by the president of the United States and relevant provisions to be a "foreign adversary controlled application"; the definition covers websites and application software, including mobile apps. The act explicitly applies to ByteDance Ltd. and its subsidiaries—including TikTok—without the need for additional determination. It ceases to be applicable if the foreign adversary controlled application is divested and no longer considered to be controlled by a foreign adversary of the United States.

PAFACA was introduced as H.R. 7521 during the 118th United States Congress by representatives Mike Gallagher and Raja Krishnamoorthi, following years of various attempts by federal lawmakers to ban TikTok in the country. The bill was passed by the House of Representatives on March 13, 2024. A modified version was passed by the House on April 20 as a rider to a foreign aid package, which was then passed by the Senate on April 23.

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.

Background

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.

National security concerns

A March 2024 report from the Office of the Director of National Intelligence (ODNI) said TikTok accounts of a People's Republic of China propaganda arm "reportedly targeted candidates" during the 2022 United States elections. Avril Haines, the U.S. Director of National Intelligence, said "we cannot rule out" that China could use TikTok to influence the 2024 United States elections. Lawmakers on the House Energy and Commerce Committee received a closed-door hearing on this from the ODNI, the Federal Bureau of Investigation and the Department of Justice. They were told that China can weaponize user data through propaganda and misinformation and that TikTok can spy on users' microphones, keystrokes, and other apps.

According to past reports and various allegations ByteDance employees in China have had access to American user data. 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.

So far these concerns are largely hypothetical. 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. 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. 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.

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. Hamas is classified as a terrorist group by the U.S. government.''The World Almanac of Islamism: 2014''
American Foreign Policy Council/ Rowman & Littlefield, 2014, p. 15. 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. 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.

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.

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.

Restrictions under the act take effect a minimum of 270 days 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.

Scope

The act targets TikTok, the social networking services of ByteDance, and those of its subsidiaries under the control of a " foreign adversary country" as defined by section 4872(d)(2) of Title 10 of the United States Code. In addition, it can target similar apps from other companies under foreign adversary control and determined by the president of the United States to be a national security threat.

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. "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.

Legislative history

House of Representatives

On March 13, 2024, PAFACA was passed by the House of Representatives. The vote was 352 to 65, with 50 Democrats and 15 Republicans voting against the bill.

On April 20, 2024, the House passed a foreign aid package (H.R. 8038), the , 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.

Senate

Senator Rand Paul opposed the bill on First Amendment grounds and said he would hold it. 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. 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. Regarding the potential of a political backlash, Senate Majority leader Chuck 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.

Lobbying

TikTok and ByteDance spent millions on lobbying against the bill. Several civil liberties and digital rights advocacy organizations also lobbied against it, including the American Civil Liberties Union, the Electronic Frontier Foundation, the Knight First Amendment Institute, Fight for the Future, the Center for Democracy & Technology, Freedom of the Press Foundation, the Asian American Federation, Access Now, the Chinese Progressive Association, FreedomWorks and PEN America. Groups lobbying for the bill included the Foundation for Defense of Democracies, State Armor Action, the Heritage Foundation, Americans for Prosperity, the American Principles Project, Hadassah and the Anti-Defamation League. Other industry and advocacy groups that reportedly lobbied for or against the bill included Oracle, Google, LinkedIn, Lenovo, Dell Technologies, the NCTA, the Competitive Carriers Association, and Issue One.

Response

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. 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. 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.

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 Platforms, Meta. Despite Trump denouncing the bill, many of his political allies voted in favor of it. Other supporters of a ban included hedge fund manager Bill Ackman and former Facebook executive Jessica Lessin#Personal life, Samuel Lessin.

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." Representatives from the Embassy of China, Washington, D.C., Chinese embassy met with U.S. congressional staffers to lobby against the legislation. 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.

Some TikTok creators mobilized against the legislation. Individuals interviewed by CNN reacted negatively to the bill. North Carolina Representative Jeff Jackson (politician), Jeff Jackson, who had grown a large following on TikTok, voted in favor of the bill, leading to backlash from users on the app that resulted in Jackson losing approximately 200,000 followers.

Advocates and experts have called for Congress to pass comprehensive privacy legislation, rather than a bill focused mostly on TikTok. 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. 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 United States presidential election, 2020 U.S. presidential election results.

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.

House Majority Leader Steve Scalise reportedly pressured K Street (Washington, D.C.), 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 United States Court of Appeals for the Ninth Circuit, Ninth Circuit Court of Appeals uphold an injunction against Restrictions on TikTok in the United States#Montana, 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.)

Israel–Hamas war

Some opponents to the bill theorized that the renewed momentum for a ban stemmed from a belief that the unpopularity of United States support for Israel in the Israel–Hamas war, Israel and the United States during the ongoing Israel–Hamas war grew because of TikTok, although evidence for that belief is unclear. 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." Sandra Tamari of Adalah (legal center), Adalah said that if Antisemitism in the United States, antisemitism was a concern, supporters of the TikTok ban would have also focused on Twitter, 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.

Edward Ahmed Mitchell, the national deputy director of the Council on American–Islamic Relations, 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.

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.

Legal challenge

Notes

References

External links

Protecting Americans from Foreign Adversary Controlled Applications Act
as enrolled bill, enrolled
PDFdetails
in the United States Government Publishing Office, GPO]
Congressional Bills collection
!-- link to Pub. L. 118–50 in Statutes at Large when available -->

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Internet law in the United States
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Acts of the 118th United States Congress
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