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[[Category:Internet law in the United States]]
[[Category:Internet law in the United States]]
[[Category:Proposed legislation of the 118th United States Congress]]
[[Category:TikTok]]
[[Category:TikTok]]
[[Category:China–United States relations]]
[[Category:China–United States relations]]

Revision as of 20:36, 24 April 2024

Protecting Americans from Foreign Adversary Controlled Applications Act
Great Seal of the United States
Long titleAn 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.
Enacted bythe 118th United States Congress
Announced inthe 118th United States Congress
Legislative history

The Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA)[1] is a law enacted by the 118th United States Congress. Introduced by representatives Mike Gallagher and Raja Krishnamoorthi, the law made 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 law explicitly targets Chinese internet technology company ByteDance, its subsidiary and video-sharing platform TikTok, and provides for other large social media applications to be targeted under the bill if they are deemed to pose a threat to national security. It was passed by the House of Representatives on March 13, 2024, and similar provisions were incorporated into a foreign aid package that the House passed on April 20 and the United States Senate passed on April 23. The bill was signed into law by Joe Biden on April 24.

Background

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

TikTok has experienced a meteoric rise in recent years, including in the United States where it has more than 150 million monthly users. The company has come under threat 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 have stalled in the past.[2][3]

National security concerns

A March 2024 report from the Office of the Director of National Intelligence (ODNI) said TikTok accounts of a PRC propaganda arm "reportedly targeted candidates" during the 2022 United States elections.[4] 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.[5] 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.[6] According to past reports ByteDance employees have had access to American user data. Nazak Nikakhtar, a former Trump Commerce official and partner at Wiley Rein LLP, 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.[7]

Cybersecurity experts said the national security concerns surrounding the company and app remain hypothetical albeit concerning.[8][9] To date, US officials have not made public any concrete examples to show how the Chinese government has accessed user data or how TikTok poses a national security threat.[9][4]

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.[4]

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. This was echoed by senators Josh Hawley and Marco Rubio.[10][11] 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.[11][12]

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.[11]

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",[2][13][14] and allows for the President of the United States to issue orders designating other companies as providers of "foreign adversary-controlled applications" if they:

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.[14][2][13]

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.[14]

Legislative history

House of Representatives

On March 13, 2024, the act was passed by the House of Representatives.[3] The vote was 352 to 65, with 50 Democrats and 15 Republicans voting against the bill.[15]

On Saturday, April 20, 2024, the House passed a foreign aid package (H.R. 8038) 360 to 58 that included similar provisions, with the time allowed for a sale to complete increased 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 pressures 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.[16][17]

Senate

Senator Rand Paul opposed the bill on First Amendment grounds and said he would hold it.[18][16][17] His opposition prevented a similar bill (S. 85) from proceeding in 2023 but may not be able to stop the foreign aid package this time.[18][19] On April 23, 2024 the Senate passed the bill 79-18.[20][21] President Joe Biden signed it into law the next day.[22]

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.[23][24] During the House debate, various lawmakers claimed that TikTok sent out a pop-up forcing its users to call their representative. In reality it was optional, but that might not have been obvious at first glance from the graphical user interface.[25]

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.[26][27] Despite Trump denouncing the bill, many of his political allies voted in favor of it.[28][29] Other supporters of a ban included hedge fund manager Bill Ackman and former Facebook executive Samuel Lessin.[30]

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."[23] China blocks many non-Chinese Internet services, including Google, YouTube, X (formerly Twitter), Instagram, WhatsApp, and Facebook for refusing to comply with data collection and censorship laws in China.[31] Representatives from the Chinese embassy met with U.S. congressional staffers to lobby against the legislation.[32]

Some TikTok creators mobilized against the legislation.[33] Individuals interviewed by CNN reacted negatively to the bill.[9][34] North Carolina Representative Jeff Jackson, who had grown a large following on TikTok, voted in favor of the bill,[35] leading to backlash from users on the app[36][37] costing him around 200,000 followers.[38] Jackson later released an apology, saying he had genuinely believed "the chance of a ban is practically zero" for financial, political, geopolitical reasons.[39]

Advocates and experts have called for Congress to pass comprehensive privacy legislation, rather than a bill focused mostly on TikTok.[34] 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.[34] 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." He added that Congress has failed to reach bipartisan consensus on critical issues such as protecting kids' privacy. As lawmakers focused their attention on TikTok, Facebook began allowing political ads again that questioned the 2020 US presidential election results. Both Facebook and Twitter were targeted by Russian interference in the 2016 United States elections.[34]

Some opponents to the bill theorized that the renewed momentum for a ban stemmed from a belief that the unpopularity of Israel and the United States during the ongoing Israel–Hamas war grew because of TikTok, although evidence for that claim is unclear.[40][30] 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."[41] 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 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.[10]

Notes

  1. ^ Included as a provision of the 21st Century Peace through Strength Act.
  2. ^ Included as a provision of the 21st Century Peace through Strength Act.

References

  1. ^ Roose, Kevin; Newton, Casey (March 15, 2024). "A Looming TikTok Ban, A Royal Photoshop Mystery, and Your Snitching Car". New York Times. Archived from the original on March 26, 2024. Retrieved March 26, 2024.
  2. ^ a b c Yilek, Caitlin (March 7, 2024). "A bill that could lead to a TikTok ban is gaining momentum in Congress. Here's what to know". CBS News. Archived from the original on March 12, 2024. Retrieved March 13, 2024.
  3. ^ a b Maheshwari, Supna; McCabe, David; Karni, Annie (March 13, 2024). "House Passes Bill to Force TikTok Sale From Chinese Owner or Ban the App". The New York Times. Archived from the original on March 13, 2024. Retrieved March 13, 2024.
  4. ^ a b c Mallory Culhane, The Chinese government is using TikTok to meddle in elections, ODNI says Archived April 17, 2024, at the Wayback Machine, Politico (March 11, 2024). "ODNI alleges that TikTok accounts run by a PRC propaganda arm reportedly targeted candidates from both political parties during the U.S. midterm election cycle in 2022. To date, there have been no concrete examples publicly provided showing how TikTok poses a national security threat, though lawmakers on the House Energy and Commerce Committee received a closed-door hearing last Thursday from ODNI, the FBI and the Department of Justice."
  5. ^ Michael Martina and Patricia Zengerle, US spy chief "cannot rule out" that China would use TikTok to influence US elections, Reuters (March 12, 2024).
  6. ^ Senators get "shocking" look at TikTok's spy Archived April 14, 2024, at the Wayback Machine, Axios (March 21, 2024).
  7. ^ Sabin, Sam (March 15, 2024). "China's national security laws are fueling TikTok fears". Axios. Archived from the original on March 16, 2024. Retrieved April 21, 2024.
  8. ^ Klippenstein, Ken (March 16, 2024). "TikTok Threat Is Purely Hypothetical, U.S. Intelligence Admits". The Intercept. Archived from the original on April 23, 2024. Retrieved April 22, 2024. In 2016 Russia did this with Facebook and they didn't have to own Facebook—they just bought ads like everybody else. Trump signed a covert action order authorizing the CIA to use social media to influence and manipulate domestic Chinese public opinion and views on China.
  9. ^ a b c Fung, Brian (March 12, 2024). "TikTok creators fear a ban as the House prepares to vote on a bill that could block the app in America". CNN. Archived from the original on March 14, 2024. Retrieved March 14, 2024. Cybersecurity experts say that the national security concerns surrounding TikTok remain a hypothetical—albeit concerning—scenario. ... a strain of fear and racism, echoing many other Asian-Americans who have looked on with growing alarm. Creators interviewed by CNN say they have not personally viewed any content on TikTok that could be described as Chinese propaganda, however. Multiple creators say the House bill ... would almost certainly disrupt the organic communities they've built.
  10. ^ a b Hale, Erin. "TikTok faces calls for ban amid claims of anti-Israel 'indoctrination'". Al Jazeera. Archived from the original on December 7, 2023. Retrieved March 17, 2024.
  11. ^ a b c Roscoe, Jules (November 13, 2023). "TikTok Says It's Not the Algorithm, Teens Are Just Pro-Palestine". Vice. Archived from the original on November 21, 2023. Retrieved March 17, 2024.
  12. ^ Jennings, Rebecca (December 13, 2023). "TikTok isn't creating false support for Palestine. It's just reflecting what's already there". Vox. Archived from the original on December 27, 2023. Retrieved March 17, 2024.
  13. ^ a b Karni, Annie; Swan, Jonathan (March 11, 2024). "House to Move Ahead With Bill Targeting TikTok as Trump Flips to Oppose It". The New York Times. Archived from the original on March 12, 2024. Retrieved March 12, 2024.
  14. ^ a b c d "H.R.7521 – Protecting Americans from Foreign Adversary Controlled Applications Act". Congress.gov. Archived from the original on March 13, 2024. Retrieved March 14, 2024.
  15. ^ Stiles, Matt (March 13, 2024). "TikTok ban: How each US House member voted". CNN. Archived from the original on March 14, 2024. Retrieved March 14, 2024.
  16. ^ a b Childs, Jeremy (April 20, 2024). "Foreign Aid Package for Ukraine, Israel... and TikTok Ban Passes House, Frustrating MAGA Republicans". Rolling Stone. Archived from the original on April 20, 2024. Retrieved April 21, 2024.
  17. ^ a b Fung, Brian (April 20, 2024). "House passes legislation that could ban TikTok in the US amid high-stakes vote on foreign aid". CNN. Archived from the original on April 20, 2024. Retrieved April 21, 2024.
  18. ^ a b Harwell, Drew; Lima-Strong, Cristiano; Nakashima, Ellen; Bogage, Jacob (March 13, 2024). "TikTok bill, racing toward House passage, faces a minefield in the Senate". The Washington Post. Retrieved March 13, 2024.
  19. ^ "S.85 - No TikTok on United States Devices Act". Congress.gov. Archived from the original on March 30, 2023. Retrieved April 23, 2024.
  20. ^ Peller, Lauren; Pecorin, Allison; Beth Hensley, Sarah; Hutzler, Alexandra (April 23, 2024). "Senate passes $95B foreign aid package for Ukraine, Israel and Taiwan: What's next?". ABC News. Archived from the original on April 24, 2024. Retrieved April 24, 2024.
  21. ^ "Biden signs a bill that could ban TikTok — after the 2024 election". NBC News. April 24, 2024. Retrieved April 24, 2024.
  22. ^ Lyles, Taylor (April 24, 2024). "Biden Signs TikTok Ban Bill Into Law, Forcing ByteDance to Sell TikTok in Nine Months Or Risk Being Banned". IGN. Retrieved April 24, 2024.
  23. ^ a b Foran, Claire; Fung, Brian; Talbot, Haley (March 13, 2024). "House passes bill that could ban TikTok despite resistance from Trump". CNN. Archived from the original on March 14, 2024. Retrieved March 14, 2024.
  24. ^ Gelpieryn, Aubrey (March 8, 2024). "TikTok told users to contact their representatives. Lawmakers say what happened next shows why an ownership restructure is necessary". CBS News. Archived from the original on March 14, 2024. Retrieved March 14, 2024.
  25. ^ Maheshwari, Sapna; McCabe, David (March 7, 2024). "TikTok Prompts Users to Call Congress to Fight Possible Ban". New York Times. Archived from the original on March 14, 2024. Retrieved March 14, 2024.
  26. ^ Ruju, Manu (March 13, 2024), Rep. Marjorie Taylor Greene and Rep. Nancy Mace explain why they voted 'no' on TikTok ban, CNN, archived from the original on March 14, 2024, retrieved March 14, 2024
  27. ^ Matza, Max (March 11, 2024). "Trump says a TikTok ban would only help 'enemy of the people' Facebook". BBC News. Archived from the original on March 14, 2024. Retrieved March 15, 2024.
  28. ^ Reporter, James Bickerton US News (March 12, 2024). "Multiple republicans set to defy Donald Trump over bill". Newsweek. Archived from the original on March 17, 2024. Retrieved March 17, 2024.
  29. ^ Klar, Rebecca (March 11, 2024). "House plows ahead with TikTok bill despite Trump's opposition". The Hill. Archived from the original on March 12, 2024. Retrieved March 14, 2024.
  30. ^ a b Ingram, David; Tenbarge, Kat (November 1, 2023). "Critics renew calls for a TikTok ban, claiming anti-Israel bias on the platform". NBC News. Archived from the original on March 3, 2024. Retrieved March 15, 2024.
  31. ^ Laura He, If the US bans TikTok, China will be getting a taste of its own medicine Archived March 30, 2024, at the Wayback Machine, CNN (March 14, 2024).
  32. ^ Fuchs, Hailey (April 17, 2024). "Chinese diplomats are quietly meeting with Hill staffers about TikTok". Politico. Archived from the original on April 18, 2024. Retrieved April 17, 2024.
  33. ^ Fung, Brian (March 12, 2024). "TikTok creators fear a ban as the House prepares to vote on a bill that could block the app in America". CNN. Archived from the original on March 14, 2024. Retrieved March 14, 2024.
  34. ^ a b c d Thorbecke, Catherine (March 16, 2024). "Congress may be going after the wrong social network". CNN. Archived from the original on March 17, 2024. Retrieved March 17, 2024.
  35. ^ "Who voted to ban TikTok? See how your Representative voted in the US House Wednesday". USA TODAY. Archived from the original on March 13, 2024. Retrieved March 14, 2024.
  36. ^ Stanton, Andrew; Rouhandeh, Alex J. (March 13, 2024). "One of Congress' most popular TikTok stars voted for bill that may ban app". Newsweek. Archived from the original on March 14, 2024. Retrieved March 14, 2024.
  37. ^ Vitali, Ali; Richards, Zoë; Santaliz, Kate (March 23, 2023). "TikTok's most popular House lawmaker talks security, potential ban". NBC News. Archived from the original on September 25, 2023. Retrieved March 14, 2024.
  38. ^ "Rep. Jeff Jackson Loses Followers After TikTok Ban Vote". Time. March 18, 2024. Archived from the original on March 19, 2024. Retrieved March 20, 2024.
  39. ^ Goldsberry, Jenny (March 16, 2024). "North Carolina representative apologizes over vote for TikTok ban". Colorado Springs Gazette. Archived from the original on March 17, 2024. Retrieved March 17, 2024. I just don't think there's any real chance of a ban ... but maybe I got that balance wrong.
  40. ^ Marcetic, Branko (March 12, 2024). "Banning TikTok Is a Terrible Idea". Jacobin. Archived from the original on March 15, 2024. Retrieved March 15, 2024.
  41. ^ Asaf Elia-Shalev, Major US Jewish group backs bipartisan bill that could see TikTok banned Archived April 5, 2024, at the Wayback Machine, The Times of Israel (13 March 2024).
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