TikTok Measure Passed by House Is Unconstitutional in Multiple Ways

Tick Tock for TikTok

Is TikTok's time finally up? On Saturday, the House of Representatives passed a measure that would require a change in the app's ownership or ban it if that doesn't happen.

Called the Protecting Americans from Foreign Adversary Controlled Applications Act, it's essentially the same divestiture-or-ban bill I wrote about in this newsletter back in March, now tucked into a larger bill (H.R. 8038, the insanely named 21st Century Peace through Strength Act) that deals with everything from fentanyl trafficking to Russian sanctions, Iranian petroleum, Hamas, and boatloads of foreign aid.

The most talked-about part of the Protecting Americans from Foreign Adversary Controlled Applications Act would ban TikTok unless it completely breaks ties with its Chinese parent-company, ByteDance, within 270 days.

But the bill goes far beyond TikTok, and could be used to justify a ban on all sorts of popular apps tied to China, Russia, Iran, or any other country that gets deemed a foreign adversary.

Specifically, the bill makes it illegal "to distribute, maintain, or update (or enable the distribution, maintenance, or updating of) a foreign adversary controlled application." And the bill's definition of "foreign adversary controlled application" is really broad.

It specifically defines TikTok, ByteDance, and subsidiaries or successors thereof as foreign adversary controlled applications.

The definition would also apply to an array of websites, apps, and "augmented or immersive technology" (with a focus on large social media entities), if they are headquartered in, principally based in, or organized under the laws of a foreign adversary country or if any person or entity with at least a 20 percent stake is based there.

And it would grant the president broad power to determine who meets this bill, opening the measure up for all sorts of potential abuse.

There are multiple ways in which this legislation likely violates the Constitution.

The most obvious constitutional problem is the First Amendment. The bill suppresses the free speech rights of Americans who post to TikTok and of those who consume TIkTok content.

It may also amount to a bill of attainder—a law punishing a specific person or entity, without a trial—and those are unconstitutional.

And it may also violate the 5th Amendment, as Sen. Rand Paul (R–Ky.) noted in a Reason article last week.

Paul thinks the Supreme Court "will ultimately rule it unconstitutional because it would violate the First Amendment rights of over 100 million Americans who use TikTok to express themselves," and "rule that the forced sale violates the Fifth Amendment. Under the Constitution, the government cannot take your property without accusing and convicting you of a crime—in short, without due process. Since Americans are part of TikTok's ownership, they will eventually get their day in court."

Paul's point brings up an important—and often overlooked—factor in all of this: No one has produced evidence of any specific legal infractions committed by TikTok, let alone proven such offenses took place. There's a ton of speculation about what TikTok could be doing, but that's it. A lot of people seem sure that TikTok is a tool of the Chinese Communist Party and you're a fool if you think otherwise. And maybe it is! But that still doesn't mean we can simply sanction the company with no due process, as Paul points out.

Speculation about what the app's ties to China mean may be a good reason for certain people to approach TikTok with caution. But they cannot justify legal action against TikTok.

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Today's Image

The Graduate Hotel, Providence | 2023 (ENB/Reason)

Comments

[MWAocdoc]

"Protecting Americans From Giving Their Personal Information to People Our Government Wants Us to Fear Who Might Abuse It Act (PAFGTPIPOGWUFWMAIA)"

Say that three times fast!

[MrMxyzptlk]

Thats a better name for it.

[prfd1]

Lol.
Reason is being the typical communist democrat cowards that they are.
Refusing to cover the massive anti-Jewish crowds storming all over America and Europe and many other parts of the world.
Every single American Ivy League college has become Auschiwitz 2.0.
Reason is silent. Zero coverage.
Chuck schumer is supporting the democrats... helping them getting rid of the Jews.
How many more Jews have to get thrown in gas chambers before we reject liberal ideas?

[Mother's Lament]

The American government using Facebook to illegally spy on it's own citizens is good.

The Chinese government using Tik Tok to spy on other countries citizens is bad.

It all makes sense once you understand how (D)ifferent both situations are.

[Social Justice is neither]

Not to mention the US government using Facebook and the rest of social media to censor dissent under threat of regulatory action is just the totally uncoerced action of private companies. I'm sure the same can be said of the enlightened libertarians (ENB style at least) of the CCP.

[prfd1]

You are spot on.

[sarcasmic]

The Constitution isn’t a suicide pact. If it must be violated to protect us from China, then violate away. Because China. If you prefer the Constitution over being protected from China then you’re not a true American anyway. Love it or move to China. Fucking commie.

[DesigNate]

I disagree with this bill, but I think the claims of “unconstitutional” are tenuous at best.

[MWAocdoc]

Not when you consider that almost all of the other over 4500 Federal laws and regulations are unconstitutional too.

[DesigNate]

Hmmm, touché.

[tekcoyote]

Exactly. Where's the constitutional violation?

And as far as Rand Paul's claim that it violates the 5th Amendment, bullshit: Paul said that "banning companies that do business with" China would be violative. TikTok is ~of~ China, i.e., part of it. And it gathers information. That's a far cry from saying that banning an organ of the CCP is the same as "doing business with China."

I don't know who "Elizabeth Nolan Brown" is, but she might try actually thinking about what she reads and then writes about before putting finger to keyboard. What an idiot.

[InsaneTrollLogic]

We've been saying that about ENB for years, especially when she used to write the Roundup.

[prfd1]

we're supposed to "have faith" in our election process.
We are told that switching over to weird computer programs is election integrity. Voting in person is fake. Shut up or we will arrest you.
We're told we have to trust the cyberworld and just let our votes get counted by computers on a different continent. Just shut up and let your vote get counted.
Shut up and don't say anything as trucks bring in pallets of xeroxed ballots.
Shut up and take your covid shot.
Why is everybody dying these days?
Pretty soon there won't be any celebrities left. Everybody is dying. sorry dude.... just pointing out the weird stuff.

[sarcasmic]

Specifically, the bill makes it illegal "to distribute, maintain, or update...

*in a Bruce Campbell voice*
Commerce Clause, baby. There ain't nothing it can't do.

[JesseAz]

Tell us how Joe recognizes the constitution again lol.

[Bill Dalasio]

I have to admit, its a bit ridiculous watching the GOP, within a year or two of learning that the government has been "collaborating" with the U.S. social media giants to silence them and and tilt the public discourse in favor of progressives, go all in on letting the government shut down market players just at the mention of the word "China". So, maybe we can try a new variant:

Hey, GOP,

* The Chinese totally want the U.S. to continue funding a proxy war in Ukraine.
* The Chinese are utterly opposed to ending the Fed.
* The Chinese definitely don't want the U.S. government to cut spending and lower taxes.
* Student loan "forgiveness"? The Chinese totally support that.
* Writing me a check for $100 billion? The Chinese are dead set against it.

[sarcasmic]

It's funny because it's true.

[Quicktown Brix]

That's (R)ifferent.

[DesigNate]

Something something controlled opposition something something

[Overt]

The (R)aiders and (D)olphins are rivals. They play against each other and fight tooth and nail for the championship, every year. But they also fight tooth and nail to keep the players' unions in check, and the advertising money coming in, and the NFL the only pro football game in town.

Sure they are on opposing teams. But they are in the same league and they will never, ever, let the league down.

[Quicktown Brix]

Or this football analogy:
The GOP is Lucy. The GOP voter is Charlie Brown...

How about basketball?
Democrats are the Harlem Globetrotters and Republicans are the Washington Generals.

[DaveM]

Works.

[Rick James]

Laura LeMoon writes about fighting financial discrimination against sex workers.

First they came for the anti-lockdown/anti-vaccine mandate protesters but I said nothing, because I wasn’t anti-lockdown or anti-vaccine mandate…

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I see she blamed the lack of response to AIDS on homophobia.

* Far more deaths from other causes were more in need of a disease whose transmission was well-understood and avoidable.

* The initial reports were too few and too hazy to know what was going on. She notes it was three years before they knew the cause. That was lightning fast for the time.

Did she really expect, from 40 years of hindsight, that medical researcher would drop everything they were doing for cancer, heart disease, and other much more serious diseases, to focus in on one relatively new and rare disease?

And then she blames Trump for everything that Reagan didn't do right either.

Fuck off, idiot.

[Rick James]

I mean, is there anything more libertarian than a woke sex worker who thinks the correct response is for the government to weld people into their apartments?

[InsaneTrollLogic]

Well, to be honest, one Tony Fauci was involved in malinformation in both cases resulting in bad policy decisions.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Eh. To be really honest, the data available at the time showed it was no scary pandemic.

* The average age of death with/from COVID in Italy was the same as average age of death from all causes.

* That cruise ship had three deaths from 2000 crew and passengers after being locked up for a couple of weeks.

(Figures are from memory and may be off some.)

[Earth-based Human Skeptic]

'TikTok Measure Passed by House Is Unconstitutional in Multiple Ways'

You know what else is unconstitutional?

[chemjeff radical individualist]

Specifically, the bill makes it illegal "to distribute, maintain, or update (or enable the distribution, maintenance, or updating of) a foreign adversary controlled application." And the bill's definition of "foreign adversary controlled application" is really broad.

It specifically defines TikTok, ByteDance, and subsidiaries or successors thereof as foreign adversary controlled applications.

By singling out a specific entity, wouldn't this be a "bill of attainder"?

[Nobartium]

China does have the advantage here, or they should if you follow the simple logic: they block all US traffic.

The fact that they won’t means a sale is inevitable.

[TrickyVic (old school)]

Or they don't sell or do anything. Will the US government then block Tiktok?

[Yuno Hoo]

The definition would also apply to an array of websites, apps, and "augmented or immersive technology" (with a focus on large social media entities), if they are headquartered in, principally based in, or organized under the laws of a foreign adversary country or if any person or entity with at least a 20 percent stake is based there.

Got a definition of "augmented or immersive technology"? Otherwise, perhaps we can finally ban those killer swimming pools!

[George Reeves]

It is a media lie that anyone wants to ban TikToc. What is wanted is to eliminate the CCP control of TicToc. The CCP wants to weaken and tear down the US. It is foolish to give them access to American personal data and the opportunity to deceive by controlling information on a large platform.

[Zeb]

Americans should be deceived by their own government, damnit!

[BYODB]

Yeah, I'd maybe give more of a shit about the Chinese vacuuming up useless data about teens if our own government wasn't doing the same thing outside the limits of our constitution across the board.

China can't really do anything to you in particular with TikTok, but the American government can do a lot to you over your Facebook.

[sarcasmic]

What use is the data other than targeted advertising?

[Zeb]

Probably not much. Even if there is, the kind of data that can be gathered through something like Tiktock is out there for anyone who wants it and that's just the world we live in now. If people are worried about that they can not sign up to stupid shit like that or use fake accounts or whatever they want.

[MatthewSlyfield]

“The most obvious constitutional problem is the First Amendment.”

Actually, given that the bill calls out Tik Toc by name, the most obvious problem might be the Article 1 Section 9 prohibition on bills of attainder.

[ObviouslyNotSpam]

Considering that the First Amendment says Congress shall make no law... abridging the freedom of speech, and Congress has made no law abridging the freedom of speech, I'm not sure I would agree with Liz or Rand on that point.

If Congress had actually or even effectively made a law abridging the freedom of speech (as in banning all gun manufacturers in order to infringe the 2nd Amendment) that would be one thing, but this is not even close to being like that. It incidentally affects some speech (as did the prosecution of BackPage), but it is clearly not a law aimed at abridging or which is even likely to abridge anyone's free speech.

[LIBtranslator]

In older political dictionaries attainder was, in English law, bound up with forfeiture of all property. American government liked the forfeiture part but put buzz-killing limits on it. By narrowing the definition to "legislative condemnation without the formality of a judicial trial," the door was left ajar for cops to rob people on the highways, abscond with goods and make it nearly impossible for owners to again gain possession of what is lawfully theirs. Still, if Traitor Trump is convicted of treason, lifetime forfeiture becomes an option.

[JesseAz]

Is this more unconstitutional than Biden working to take Russian assets to give to Ukraine?

https://www.zerohedge.com/geopolitical/repo-act-passage-has-authorized-biden-confiscate-russian-assets-give-them-ukraine

I don't give 2 shits about TikTok. Think most users are retards. But the constitutionality is more questionable here than government working with silicon Valley to censor citizens. The 1A historically doesn't apply to foreign actors not on the US soil. This being a Chinese country they don't get the explicit same rights as a US company.

[Zeb]

The 1A historically doesn’t apply to foreign actors not on the US soil.

I suppose that is likely true. But I don't see how it really should be given a plain reading of the 1A. It only actually applies to congress. Doesn't say anything about congress can make a law if it only applies to non-citizens outside the US.

[MatthewSlyfield]

I think both the REPO act and the tik tok ban are arguably bills of attainder.

[ObviouslyNotSpam]

Constitutionality aside, the REPO Act is fairly low risk, considering that Russia has already targeted and seized or forced the sale of most of the western assets which had foolishly been invested in Russia since the failure of the USSR.

Still, it's probably better for them to threaten us with that than with their usual threats to start a nuclear war in Europe?

[inventek]

Reason is totally ignoring the Fortune investigation that found TikTok gave employees fake American bosses while actually sending data to China.

“I literally worked on a project that gave U.S. data to China. They were completely complicit in that. There were Americans that were working in upper management that were completely complicit in this,” according to one TikTok executive.

The due process violation argument is also a stretch. The Fifth Amendment’s Takings Clause prohibits the government from taking private property for PUBLIC use without just compensation. I don’t see how forcing a private company to sell itself to another private company would violate this principle.

I appreciate Paul’s willingness to stand for constitutional principles in the face of aggressive CCP manipulation, but the national security implications are too great to ignore. Secretly forking over user data to an adversarial superpower may not be a crime per se, but it certainly does us no favors to ignore it because “muh free markets.”

[MWAocdoc]

You seem to have missed the whole point while wasting a couple hundred words. TikTok can only give information to China that fools privately give to them in the first place. It's not like agents are somehow using TikTok to spy on American defense secrets. Jeez, I couldn't care less if China has your mother's picture in her pajamas. I don't want Congress to try to protect your mother's pictures in her pajamas from China either! This is pure idiocy.

[Brett Bellmore]

Actually, no, unless you have a REALLY broad definition of "give". It's been established that TikTok has a built in keylogger, that's capable of capturing private data like passwords if you're at all careless in using the ap.

And, how about this scenario: China uses the spying on teens today to accumulate blackmail files, and then uses those files when some of those teens inevitably end up in useful positions.

Seriously, I wonder if we'd have won WWII, let alone the cold war, if we were this stupid back then. We'd probably have gone into the war buying our munitions from the lowest bidder, Germany, and been shocked when they blew up in our guns.

[inventek]

An adversarial authoritarian government has access to the private data of nearly 150 million Americans, many of whom are impressionable young people who are easily manipulated by content online. Yet you think there’s some “point” that I missed? Talk about idiocy.

[prfd1]

Democrats and Republicans have declared that American Citizens are too stupid to be allowed to see what is going on in the world.
They banned tic toc. and plan much more banning on top of all the banning they already did.
Average Americans are fat lazy stupid uneducated welfare rat government cheese eating obese refuse to work call in sick steal from everybody free college vote for welfare can't walk walmart cart riding unarmed pajama wearing unshowered anti-semetic tv brain dead watching demand free healthcare vote for free programs don't offend me I don't know my gender give me your wallet I cant' work today I hate white people and Jews give me a ride to the welfare office vote democrat.

[JeremyR]

TikTok is literally Chinese propaganda. It's not what is going on in the world, it's what the CCP wants Americans to see.

To be fair, we do the same with Voice of America

[MWAocdoc]

I don't need protection from Chinese propaganda OR American government propaganda. I never even see anything on TikTok and when it became clear to me that Facebook "fact-checkers" were not even remotely checking facts, I abandoned Facebook. The average American gave away my rights along with theirs a long time ago and it had nothing whatever to do with Chinese propaganda.

[prfd1]

Spot on.

[AT]

But the bill goes far beyond TikTok, and could be used to justify a ban on all sorts of popular apps tied to China, Russia, Iran, or any other country that gets deemed a foreign adversary.

I can't even with you, Liz.

"Or any other country that gets deemed a foreign adversary?"

How - why - do you fail to acknowledge that Russia, China, and Iran ARE - ARE IN ABSOLUTE FACT a foreign adversary?

I swear, it's people like you who make me wonder whether McCarthyism was really all that objectionable.

[MWAocdoc]

Because the United States Government does not – and SHOULD not – have the authority to make law based upon such a ridiculously vague and nebulous narrative. Would you like to spend “five to ten” in a Federal penitentiary because you had been “deemed to be an adversary” of the United States? If not, why not? Your egregious use of a straw man argument here is beneath even you and your usually feeble attempts at logic. No one in her right mind would say that China and Russia are not foreign adversaries. No one anywhere near "Reason" has ever failed to acknowledge such a concept. But by all means try to undermine the argument made in the article by arguing against something you made up to pretend that you have prevailed. You're truly a mastermind in your own mind.

[AT]

Because the United States Government does not – and SHOULD not – have the authority to make law based upon such a ridiculously vague and nebulous narrative.

I didn’t say anything about the United States Government or making laws. We’re talking about a unabashedly anti-American moron writer at Reason.

No one in her right mind would say that China and Russia are not foreign adversaries.

Then what is broken in ENB’s pea brain that kept her from doing so? She could make the very argument you just did WITHOUT making the implicit statement that they’re only foreign adversaries because the government deemed them as such.

For example: “While currently targeted at known foreign adversaries, such as Russia, China, and Iran, whose apps have ample evidence to show their subversive and exploitative purpose, the bill could go far beyond used to justify a ban on all sorts of popular apps tied to other nations as well.”

But no, she went with a decidedly anti-American slant. And failed to mention precisely WHY China-controlled TikTok is a bad thing. Because they can’t help themselves, on account of the core of their actual gripe being hating America and Americans. Just like any other prog/woke/lefty.

[MWAocdoc]

Speaker of the House Mike Johnson has been Speaker for almost six months. I hereby issue a challenge to the House Republican Caucus to cap his term at exactly six months, and keep trying to better his score by limiting the next Speaker of the House to five months; and the one after that to four months, and the one after that to ... well, you get the idea. Mike has been an unqualified disaster in the "hands across the aisle" category and all pretense that the GOP was even remotely "conservative" has now evaporated. Somewhere in the "Camp David from Hell" I can hear FDR cackling with glee ...

[DaveM]

No doubt all governments the world over are doing literally everything in their power to get into the shorts of the American consumer online. To this crowd, banning a country is merely just one way to cut out the competition. The US, in particular, is among the very worst of the offenders when it comes to prying into the lives of its citizens.

So, no, banning apps isn't a good idea. It helps the government. It doesn't help Joe Citizen, in fact it cripples him.

But banning apps isn't the only thing that could be done, not by a long shot. We could place a duty tax on those apps run by foreign governments. We could subject those users to security scans and audits in the name of national security. We can communicate with those users and remind them that their private data is being sent to a foreign government.

But most of all, the US government could stop being such a bad example, so people actually start listening to it and trusting it again.

[Libertatem]

I don't understand how the First Amendment is implicated at all. Is she arguing that Americans have a First Amendment "right" to post to particular social media apps? Even if that were true, how does this bill infringe on that? The bill has nothing to do with speech--it has to do with ownership of an app being tied to a foreign adversary. Even assuming ad arguendo that this impacts speech rights, it seems likely to satisfy strict scrutiny.

"It may also amount to a bill of attainder—a law punishing a specific person or entity, without a trial—and those are unconstitutional."

Is one sentence sufficient to analyze/conclude the legal standard for a bill of attainder nowadays? To be an unlawful bill of attainder, the courts look at whether or not it (1) targets specifically named or identifiable individuals or groups and (2) inflicts punishment without judicial protections that would otherwise be available. Interestingly enough, Huawei made this argument in District Court re the 2019 National Defense Authorization Act (which had language prohibiting the government from buying equipment from Huawei). The District Court held that the statute was lawful because it was not denying Huawei a trial for past offenses--instead, the law applied to transactions that had not yet occurred (therefore it was not imposing a punishment that would render it a bill of attainder). As to Tik Tok, its unlikely this argument would survive a motion to dismiss.

"And it may also violate the 5th Amendment, as Sen. Rand Paul (R–Ky.) noted in a Reason article last week."

I suppose it could violate the 5th Amendment, assuming that divestment-or-a-ban amounts to a taking of property without due process. One big hurdle would be that it's not a taking of property at all.