Protecting Americans from Foreign Adversary Controlled Applications Act

Protecting Americans from Foreign Adversary Controlled Applications Act

Long title	An Act to protect the national security of the United States from the threat posed by foreign adversary controlled applications, such as TikTok and any successor application or service and any other application or service developed or provided by ByteDance Ltd. or an entity under the control of ByteDance Ltd.
Announced in	the 118th United States Congress
Legislative history
Introduced in the House as H.R. 7521 by Mike Gallagher (R-WI) on March 5, 2024 Committee consideration by United States House Committee on Energy and Commerce Passed the House on March 13, 2024 (352–65)

The Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA) is a proposed bill in the United States Congress. Introduced by representatives Mike Gallagher and Raja Krishnamoorthi, the bill would make it illegal to distribute, maintain, or update (or enable the distribution, maintenance, or updating of) social media applications designated as being controlled by United States foreign adversaries, unless exempted under a qualified divestiture as determined by the president of the United States.

The bill explicitly targets Chinese internet technology company ByteDance and its video platform TikTok, and also provides for other large social media applications to be targeted under the bill if they are deemed by the U.S. president to pose a threat to national security. It was passed by the House of Representatives on March 13, 2024.

Background

National security concerns

In October 2019, Senator Marco Rubio requested a Committee on Foreign Investment in the United States (CFIUS) inquiry into TikTok over concerns that the app's parent company ByteDance was censoring content that did not align with the Chinese Communist Party (CCP). In November, Reuters reported that the agency had opened a national security review into ByteDance over its acquisition of Musical.ly, a social media service the company acquired in 2017 and merged with TikTok the following year.

U.S. intelligence has cited national security concerns surrounding BryeDance and TikTok. A March 2024 Office of the Director of National Intelligence report concluded that the Chinese government was using Tiktok as part of influence operations (i.e., Chinese disinformation and propaganda campaigns); the report did not cite specific examples, but members of the House Commerce Committee were privately briefed. U.S. intelligence also cited the possibility that the Chinese government could use the platform as a vector for interference in U.S. elections. Senators briefed by U.S. intelligence agencies on TikTok described being told of China's ability to use TikTok as spyware, collecting user data including through microphone and keystroke tracking.

ByteDance executives maintain that the company voluntarily "walls off" U.S. users' data (through a project it calls "Project Texas"). However, multiple accounts from current and former employees, as well as internal company documents obtained by the media, show that user data is shared with the Chinese parent company, including information such as user emails, birthdates, and IP addresses. A former ByteDance employee testified in 2023 that Chinese Communist Party officials accessed TikTok user data "on a broad scale, and for political purposes" using a designated backdoor (a "god credential") in 2018 to spy on Hong Kong pro-democracy activists. Chinese law (including the 2017 National Intelligence Law) obligates companies to cooperate with the Chinese intelligence and state security apparatus, and under Chinese law, virtually all companies must have a CCP presence embedded in their organization.

Attempts to restrict TikTok

Main articles: Donald Trump–TikTok controversy and Restrictions on TikTok in the United States

In 2020, Donald Trump signed executive order 13942 in an attempt to ban TikTok but it was blocked. The following June, new president Joe Biden revoked Trump's order but ordered the Secretary of Commerce to investigate whether TikTok poses a threat to U.S. national security.

In March 2023, a bill known as the RESTRICT Act was put forward in the Senate, which proposed that the Secretary of Commerce be given the power to review transactions relating to information and communications technologies products or services that are held or under the jurisdiction of a foreign adversary, and pose an "undue and unacceptable risk" to national security. The bill did not explicitly name ByteDance or TikTok, nor did its sponsors, but it was suggested that it was the bill's implicit target.

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. Representative Mike Gallagher (R-WI) decried “rampant pro-Hamas propaganda on the app” in his push for a ban. Gallup polling data going back to 2010, however, show 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 applies to companies designated as a provider of "foreign adversary-controlled applications"; that phrase is defined as "a website, desktop application, mobile application, or augmented or immersive technology application that is operated, directly or indirectly, by" an entity controlled by a foreign adversary. The Act explicitly designates ByteDance, Ltd. or its subsidiaries and successors as a provider of "foreign adversary-controlled applications", and allows for the President of the United States to issue orders designating other companies as providers of "foreign adversary-controlled applications" if they:

• Are controlled by or otherwise under the jurisdiction of a foreign adversary of the United States, as defined by section 4872(d)(2) of Title 10 of the United States Code (i.e., China, Russia, North Korea, and Iran).
• Offer a service which allows registered users to "generate, share, and view text, images, videos, real-time communications, or similar content" that can be viewed by other users.
  • The provisions exclude services used to post customer reviews and travel information.
• Have at least one million active users in the United States.
• Pose a "significant threat" to the national security of the United States.

The Act prohibits the distribution, maintenance, or updating of "foreign adversary-controlled applications", including the facilitation of services (such as hosting) that enable such activities. This includes disseminating the applications on an online marketplace such as an app store. This effectively bans affected services from the U.S. market.

Restrictions under the Act take effect 180 days after a designation is issued, during which time the application must provide the ability for users to export their data from the service. 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.

Legislative history

House of Representatives

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

Senate

Senator Rand Paul suggested that he would oppose the Protecting Americans from Foreign Adversary Controlled Applications Act and could hold the bill, a measure he implemented to prevent the No TikTok on Government Devices Act from proceeding.

Response

In March 2024, 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." The Chinese government blocks most U.S.-based Web services, including Google, YouTube, X (formerly Twitter), Instagram, WhatsApp, and Facebook, and China restricts the export of technology.

Former president Donald Trump denounced the bill, claiming that it would give too much power to Facebook (which he called an "enemy of the people") and its owner Meta. Despite Trump denouncing the bill, many of his political allies still voted in favor of it.

TikTok creators mobilized against the legislation.

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. During the debate various representatives claimed that TikTok sent out a pop-up forcing its users to call their representative to use the app, while in reality it was only optional and could be ignored.

North Carolina Representative Jeff Jackson, who had grown a large following on TikTok, voted in favor of the bill, leading to public backlash from users on the app costing him around 200,000 followers. Jackson later released an apology, saying he had genuinely believed "the chance of a ban is practically zero" for financial, political, geopolitical reasons. Additionally, he deleted the original video talking about the bill.

A statement made by former Speaker of the House Nancy Pelosi went viral on social media. Pelosi was mocked with many labeling her old and out-of-touch. Late-night host John Oliver felt that Pelosi "alienated every American under the age of 35.”

People interviewed by CNN reacted negatively to the bill, citing anti-Asian sentiment and Facebook allowing political ads again that question the 2020 US presidential election despite itself being targeted by Russia in 2016.

Opponents to the bill theorized that it was passed due to a belief that opposition to the American support for Israel during the ongoing Israel–Hamas war was generated largely or in part by TikTok. 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 and that TikTok is the worst offender by far." Edward Ahmed Mitchell, the national deputy director of the 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 less restrictive of such views, adding that young people have become more sympathetic to the Palestinian people due to getting more information from outside of mainstream media.