TikTok Ban

The Protecting Americans from Foreign Adversary Controlled Applications Act passed the House of Representatives on March 13, 2024. This analysis will explain in plain language what it can be made to do.

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.

"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)).