Protecting Americans from Foreign Adversary Controlled Applications Act

Long title	An 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 by	the 118th United States Congress
Announced in	the 118th United States Congress
Legislative history
Introduced in the House as H.R. 7521 by Mike Gallagher ( R- WI) on March 5, 2024 Committee consideration by United States House Committee on Energy and Commerce Passed the House on March 13, 2024 ( 352–65) Passed the House as H.R. 8038 [a] on April 20, 2024 ( 360-58) Agreed to by the Senate [a] on April 23, 2024 ( 79-18)   Signed into law by President Joe Biden on April 24, 2024

The Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA) is an act of Congress that was signed into law on April 24, 2024 as a rider to the National Security Act, 2024. The act prohibits the distribution and maintenance of large social media applications that are owned by or under the jurisdiction of a foreign adversary to the United States and deemed to pose a threat to national security unless they are divested within a specific timeframe as to no longer be controlled by a foreign adversary. The act explicitly targets the products of ByteDance and its subsidiaries, including the video sharing service TikTok.

PAFACA was introduced as H.R. 7521 during the 118th United States Congress by representatives Mike Gallagher and Raja Krishnamoorthi following years of various attempts by federal lawmakers to ban TikTok in the country. The bill was passed by the House of Representatives on March 13, 2024. A modified version was passed by the House on April 20 and by the United States Senate on April 23.

TikTok and ByteDance spent millions lobbying against the bill. Multiple advocacy groups and corporations also lobbied for and against the bill. Critics of the act point out that a comprehensive privacy legislation is needed instead of singling out TikTok and that there is a perception that it was pushed through due to pro-Palestinian content on the platform in the context of the Israel–Hamas war.

Background

TikTok has more than 150 million monthly users the U.S. 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 were stalled due to policy changes after Biden entered office in 2021 and courts rulings against bans. ^{[1] [2] [3]}

National security concerns

A March 2024 report from the Office of the Director of National Intelligence (ODNI) said TikTok accounts of a People's Republic of China 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 and various allegations ByteDance employees have had access to American user data. ^{[7] [8]} Nazak Nikakhtar, a former Trump Commerce Department official and partner at Wiley Rein, 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. ^[9]

Cybersecurity experts said the national security concerns surrounding TikTok remain hypothetical albeit concerning. ^[10] To date, there is a lack of public evidence to show Chinese government accessing American user data or TikTok sharing such information with Chinese authorities. ^{[10] [11]} According to computer security specialist Bruce Schneier, TikTok's ownership may not be the real issue. Recent examples show that influence operations can be conducted without ever owning a platform, such as how Russia interfered in the 2016 US elections in part through Facebook. ^[12] 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. ^{[13] [14]} Gallup polling data going back to 2010, shows that younger Americans, who are more likely to use TikTok, show greater sympathy for Palestine than Israel. ^{[14] [15]}

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. ^[14]

Sandra Tamari of Adalah said that if antisemitism was a concern, supporters of the TikTok ban would have also focused on X, which has many anti-Jewish conspiracies. The real reason, according to Tamari, is because "they don’t have control over TikTok", which has allowed Palestinian voices to be heard directly. ^[16]

Provisions

The act applies to companies designated as a provider of "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. "Covered companies" explicitly include ByteDance, Ltd., its subsidiaries and successors, ^{[1] [17] [18]} and allow for other companies to be designated as "foreign adversary-controlled applications" by executive orders if they:

• Are controlled by or otherwise under the jurisdiction of a " foreign adversary country" as defined by section 4872(d)(2) of Title 10 of the United States Code. ^[b]
• Offer a service which allows registered users to "generate, share, and view text, images, videos, real-time communications, or similar content" that can be viewed by other users.
  • The provisions exclude services used to post customer reviews and travel information.
• Have at least one million active users in the United States.
• Pose a "significant threat" to the national security of the United States. ^[18]

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. ^{[18] [1] [17]}

Restrictions under the act take effect a minimum of 270 days ^[20] 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. ^[18]

Legislative history

House of Representatives

On March 13, 2024, PAFACA was passed by the House of Representatives. ^[2] The vote was 352 to 65, with 50 Democrats and 15 Republicans voting against the bill. ^[21]

On April 20, 2024, the House passed a foreign aid package (H.R. 8038), the 21st Century Peace through Strength Act, as part of the National Security Act, 2024. The bill incorporates a modified version of PAFACA, with the time allowed for a sale to complete increased from 180 days 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 pressured 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. ^{[20] [22]}

Senate

Senator Rand Paul opposed the bill on First Amendment grounds and said he would hold it. ^{[23] [24] [20]} His opposition prevented a similar bill (S. 85) from proceeding in 2023 but was not expected to be able to stop the foreign aid package. ^{[23] [25]} On April 23, 2024, the Senate passed the National Security Act, 2024, which included the 21st Century Peace through Strength Act along with three other bills, 79-18. ^{[26] [27] [28]}

Lobbying

TikTok and ByteDance spent millions on lobbying against the bill. ^{[29] [30]} The ACLU also lobbied against it. Groups lobbying for the bill included the Foundation for Defense of Democracies, State Armor Action, the Heritage Foundation, Americans for Prosperity, the American Principles Project, Hadassah and the Anti-Defamation League. Other industry and advocacy groups that reportedly worked on the bill were Oracle, Google, LinkedIn Lenovo, Dell Technologies, the NCTA, the Competitive Carriers Association, the Electronic Frontier Foundation, and Issue One. ^[31]

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. ^{[32] [33]} 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. ^{[34] [35]}

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. ^{[36] [37]} Despite Trump denouncing the bill, many of his political allies voted in favor of it. ^{[38] [39]} Other supporters of a ban included hedge fund manager Bill Ackman and former Facebook executive Samuel Lessin. ^[40]

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." ^[32] Representatives from the Chinese embassy met with U.S. congressional staffers to lobby against the legislation. ^[41] Sources told The Wall Street Journal that the Central Propaganda Department of the Chinese Communist Party instructed the country's state media outlets to increase positive coverage of ByteDance, although Beijing's overall response so far appears to be muted. ^[42]

Some TikTok creators mobilized against the legislation. ^[43] Individuals interviewed by CNN reacted negatively to the bill. ^{[10] [44]} North Carolina Representative Jeff Jackson, who had grown a large following on TikTok, voted in favor of the bill, ^[45] leading to backlash from users on the app. ^{[46] [47]}

Advocates and experts have called for Congress to pass comprehensive privacy legislation, rather than a bill focused mostly on TikTok. ^[44] 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. ^[44] 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." For example, U.S. platforms that had been targeted in the recent past by foreign influence operations included Facebook and Twitter. As lawmakers focused their attention on TikTok, Facebook began allowing political ads again that questioned the 2020 US presidential election results. ^[44]

Israel–Hamas war

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 belief is unclear. ^{[40] [48]} 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." ^[49] 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. ^[13]

Notes

References