House TikTok divestment bill is a ban, but it’s more than that

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Last Wednesday, the U.S. House of Representatives passed H.R. 7521, a bill that would prohibit U.S. entities — most importantly, app stores — from “distribut[ing], maintain[ing], or updat[ing]” TikTok unless TikTok’s Chinese corporate owner, ByteDance, sells the social media platform to a buyer acceptable to the president.

Proponents of the bill say it’s not a “ban.” They argue that the legislation is “narrowly tailored” in that TikTok is free to operate in the U.S. under the proposal, it just can’t do so while controlled by China. Opponents have said that the bill is “censorship — plain and simple” and that the divestiture requirement is a ban on TikTok by another name.

Looking closely at the bill, the opponents probably have the better part of the argument, as the president would have to approve any sale. Under section (g)(6) of the bill, a “qualified divestiture” is one where the president “determines” that there is no longer any control or operational relationship between the relevant entity and the foreign owner. To effectively bar the platform from the U.S., the president could just reject any buyer.

But, while Congress banning TikTok entirely from the U.S. would present independent First Amendment concerns, what has flown somewhat under the radar is that the bill could sweep beyond TikTok to other social media platforms, and, indeed, possibly to news websites.

Here’s how H.R. 7521 works. First, it would make it unlawful for any entity to “distribute, maintain, or update” any “foreign adversary controlled application” through any “marketplace” (including any “online mobile application store”) in the U.S., or to provide “internet hosting services” for the same purposes.

Second, it would back that up with civil penalties “not to exceed” $5,000 per user who accesses the website or application in the U.S. (TikTok says it has more than 150 million users in the U.S., meaning the theoretical fine could be … north of $750 billion.)

Third, the bill defines “foreign adversary controlled application” as any website, desktop application, mobile application, or “augmented or immersive technological” application that is owned or controlled by ByteDance or TikTok, or by a “covered company” controlled by a “foreign adversary country,” where the president has determined that the application poses a “significant threat to the national security of the United States.”

That “covered company” bucket is doing a lot of work. The bill defines the term as an entity operating a website or application that (1) permits a user to create an account to generate and share text, video, and other content; (2) has more than a million monthly users; (3) enables one or more users to generate or distribute content that can be accessed by other users; and (4) enables one or more users to access content by other users.

In other words, news websites that offer even rudimentary user-comment functionality would appear to fit the bill, and a million monthly users isn’t that much. (Note that the bill contains an exception for a website or application that is primarily used “to post product reviews, business reviews, or travel information and reviews.”)

Now, it is true that the universe of “foreign adversary countries” is limited in the bill to China, North Korea, Russia, and Iran. But that’s just a matter of legislative grace. For the definition of “foreign adversary country,” the bill uses the list of “covered nations” in a random section of the U.S. Code that bars the Pentagon from buying rare earth magnets, tungsten, and tantalum from those four countries. That is to say: The list is somewhat arbitrary, and there isn’t anything stopping Congress from changing it as political winds shift over time.

Indeed, the fact that H.R. 7521 borrowed from a statute regulating “samarium-cobalt” and “neodymium-iron-boron” magnets highlights the inherent issue with this bill. Namely, national security authorities are a poor fit when the target is the flow of information. Congress may have ample authority to block a company in the U.S. from buying Soviet steel, but journalists, researchers, and others in the U.S. have good reasons for reading Pravda. Pulling down an entire social media platform amplifies that concern because it restricts a forum that is widely used for public discourse in the U.S.

The bill now moves to the Senate for consideration, where its fate is uncertain. Were it to pass and generate a First Amendment lawsuit, the law would pose slightly different issues than efforts by former President Donald Trump to block TikTok under his emergency economic authorities. There, the “Berman Amendment” to the International Emergency Economic Powers Act, which insulates the exchange of informational material from sanctions, led a court to block the move as outside the scope of the president’s authority. (See the Reporters Committee’s friend-of-the-court brief in that case here.)

In this case, H.R. 7521 would be a stand-alone act of Congress. Challengers could, however, likely invoke similar arguments based on Supreme Court precedent invalidating regulations that target entire channels of communication. And that’s probably not wrong. Certain senators, for instance, have suggested that there may be more tailored approaches to dealing with any foreign ownership and data privacy concerns. The existence of such alternatives could lead courts to look skeptically at a total ban (even an indirect one, like H.R. 7521).

In any event, we’ll keep a close eye on this one. It’s fascinating.

The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.