Understanding the Controversial Anti-TikTok Bill: Insights from Lawyers
The debate surrounding the bill that could potentially ban TikTok in the United States unless it severs its ties to China has sparked controversy and divided opinions. While many argue that the social media app poses a national security risk, others express concerns about the expansion of government control over speech. Lawyers and legal experts have weighed in on the matter, shedding light on the different aspects of the bill and its potential implications.
The bill, known as H.R. 7521, targets major social media apps or websites that are directed or substantially owned by entities based in adversarial nations such as China, Russia, Iran, and North Korea. TikTok and its parent company, Bytedance, are specifically mentioned in the bill, but it also allows for the expansion of its scope to include other social media companies with similar foreign links.
One of the main arguments revolves around the issue of control. The bill defines entities controlled by foreign adversaries as those with home addresses in the adversarial nations, conducting business primarily in those countries, or organized under their laws. Additionally, any company owned at least 20 percent by such entities would also be considered controlled by a foreign adversary. However, the bill lacks clarity on what qualifies as “direction or control,” leaving room for interpretation and potential abuse.
The phrase “direction or control” is commonly used in business and tax law to describe the power to give orders and make decisions. However, it is also used in counterintelligence law, where it has been interpreted more broadly to include acting upon informal requests from foreign officials. This raises concerns that the government may adopt a similar interpretation of the TikTok bill, potentially leading to investigations based on circumstantial evidence.
While some argue that the bill should provide more clarity on the definition of control and direction, others highlight the need to address foreign influence and surveillance through social media platforms. The bill aims to prevent companies from circumventing the law through straw ownership and requires them to divest from foreign-linked entities or face being blocked in the United States.
Another point of controversy relates to legal transactions. Section 951, which is referenced in the bill, includes an exception for “any person engaged in a legal commercial transaction.” However, the TikTok bill does not include such an exception, raising questions about its potential application to innocuous contracts or work performed for companies from adversarial nations.
The threshold of 20 percent foreign ownership is another area of concern. The bill does not require foreign owners to be directly linked to adversarial regimes, only that they have their home address in the listed countries. This opens up the possibility of manipulation, where existing foreign investors could pool their ownership to reach the threshold or new investors could be brought in to push foreign ownership over 20 percent.
Despite these controversies, there are several hurdles before the bill can be applied to companies other than TikTok. The president would need to send a public notice and report to Congress proposing the designation of a specific app as foreign adversary-controlled and explaining the national security concerns involved. This would be followed by a 30-day waiting period and a 180-day window for the company to shed foreign ownership or sell the app before facing fines.
However, critics argue that the requirement to articulate a national security threat may not be highly constraining, as the definition of national security has been broadened in recent years. The bill also grants significant control to the president in determining whether a potential new owner would ensure sufficient distance from foreign adversary control, giving the administration influence over the buyers.
In conclusion, the controversial anti-TikTok bill has sparked intense debate among lawyers and legal experts. While there are valid concerns about the expansion of government control over speech, there are also legitimate worries about foreign influence and surveillance through social media platforms. The bill’s lack of clarity on certain aspects, such as the definition of control and direction, has raised concerns about potential abuse. Ultimately, the bill represents an attempt to address national security risks associated with foreign-linked social media apps, but it may not fully solve the underlying issues at hand.
