TikTok Ban
The Protecting Americans from Foreign Adversary Controlled Applications Act[1] passed the House of Representatives on March 13, 2024 and the Senate on April 23, 2024 as an attachment to the war aid bill[2]. The bill prohibits app stores and any internet hosting service (including VPNs) from allowing TikTok to be downloaded or updated. The President may extend this ban to any app that is at least 20% owned by a company based in China, Russia, North Korea, or Iran, and is "a significant threat to the national security of the United States".
Definitions
These definitions are arranged so that a definition that relies on another definition does not appear before it, and will be in bold when used in the remainder of this analysis.
A "foreign adversary country" is China, Russia, North Korea, or Iran[3].
"Controlled by a foreign adversary" means:
- residing, headquartered, having "its principal place of business in" or organized under the laws of a foreign adversary country (2(g)(1)(A))
- having a 20% (or more) stake owned by such an entity (2(g)(1)(B))
- "subject to the direction or control" of such an entity (2(g)(1)(C)).
A "covered company" is one that operates a website, desktop or mobile app, "or augmented or immersive technology application":
- where you can make an account to "generate, share, and view text, images, videos, real-time communications, or similar content" (2(g)(2)(A)(i))
- has more than 1,000,000 active users in 2 of the 3 months before the determination (see the following definition) is made (2(g)(2)(A)(ii))
- lets any user generate or distribute content that other users of it can see (2(g)(2)(A)(iii))
- lets any user see content generated by other users (2(g)(2)(A)(iv)).
However, it excludes apps for product, business, and travel reviews (2(g)(2)(B)).
A "foreign adversary controlled application" is a website, desktop or mobile app, "or augmented or immersive technology application" that is run by:
- ByteDance, TikTok, any subsidiary or successor of them that is controlled by a foreign adversary, or any entity owned or controlled by them (2(g)(3)(A))
- any covered company that is controlled by a foreign adversary and "is determined by the President to present a significant threat to the national security of the United States" after a public notice and a report to Congress at least 30 days before the determination (2(g)(3)(B)).
A "qualified divestiture" is one which "the President determines, through an interagency process" would stop a foreign adversary controlled application from being controlled by a foreign adversary and "any operational relationship" from being established between its US operations and any of its former affiliates that remain controlled by a foreign adversary, such as any "cooperation with respect to" content recommendation algorithms or data sharing (2(g)(6)).
An "internet hosting service" includes VPNs, DNS, and file and cloud hosting (2(g)(5)).
The Ban
It is illegal, "within the land or maritime borders of the United States", to:
- "distribute, maintain, or update" a foreign adversary controlled application, including its source code, through an app store (2(a)(1)(A))
- provide an internet hosting service to enable such "distribution, maintenance, or updating" (2(a)(1)(B)).
This takes effect:
- for TikTok, 180 days after the act is passed (2(a)(2)(A))
- for any other foreign adversary controlled application, 180 days after the determination is made (2(a)(2)(B)).
Portability
A banned app must provide to any user of it within the United States on request all the available data related to their account, including all content posted, in a machine readable format, before the ban takes effect (2(b)).
Exemption
The ban doesn't apply to:
- apps which have undergone a qualified divestiture whether before or after their ban takes effect (2(c)(1))
- actions which are needed to comply with the ban (2(c)(2)).
Enforcement
An entity which violates #The Ban can receive a "civil penalty" of $5,000 times the number of US users that "accessed, maintained, or updated" the app (2(d)(1)(A)).
An entity which violates #Portability is liable to a civil penalty of $500 times the number of affected users (2(d)(1)(B)).
The Attorney General of the United States, and no one else, can sue any entity which violates these two provisions, and no others (2(f)(1)). Users of banned apps cannot be prosecuted (2(f)(2)).
Severability
Even if the explicit TikTok ban is struck down, the President can still ban apps by issuing determinations (2(e)(2)).
Limitation
A challenge to this Act may be filed only within 165 days after it is passed and only in the DC Circuit (3(c)(1)). A challenge to any determination under this act may be filed only within 90 days after it is made (3(c)(2)).
