Congress Can Condition TikTok’s Continued Operation in US on Severing All Ties With China

Congress is currently considering legislation to counter the threats posed by TikTok, a Chinese social media app that spies on Americans and steals their data.

The House on March 13 passed by a wide bipartisan margin the Protecting Americans from Foreign Adversary Controlled Applications Act, which gives TikTok’s parent company, ByteDance, a choice: Sever ties with the Chinese government or cease business operations in the United States. It’s now up to the Senate to take up the bill.

In response, some have framed the bill as an outright TikTok ban. That claim is factually mistaken because the House-passed bill does not have that effect. But that claim does pose the question of whether Congress could ban TikTok from the United States altogether. The answer is “yes,” even though this bill doesn’t do that.

In the United States, broadcast television, cable television, and internet services are owned by private parties. The First Amendment’s free speech clause protects their right to operate without seeking the federal government’s permission on a broadcast-by-broadcast basis or by appeasing government “political officers” or censors.

Not so in China. There, comparable facilities are under the strict control of the government of the People’s Republic of China—which means that the Chinese Communist Party decides what does and does not get publicly disseminated. Through the CCP’s control of ByteDance, TikTok is effectively controlled by communist China wherever TikTok provides an internet communications platform, including within the United States.

TikTok does more than simply display videos of older Americans playing pickleball, of kindly looking nuns explaining how they can communicate across TikTok to viewers seeking to become more spiritually grounded, or of parents seeking to advise others’ children not to use drugs to avoid the fate that befell their own child.

As my colleague Kara Frederick has explained, TikTok is an intelligence-gathering device for the Chinese Communist Party. As FBI Director Christopher Wray told Congress, “[t]he key point is that the parent company [ByteDance] is, for all intents and purposes, beholden to the CCP.”

ByteDance is subject to the PRC’s 2017 National Intelligence Law, which demands that every Chinese individual and legal entity cooperate with the PRC’s intelligence apparatus. Only a fool would believe that Communist China does not have access to every operation of TikTok, particularly every action that it takes to gather information about Americans.

TikTok connects to the internet and gives the Chinese Communist Party information about whoever accesses the platform. If you access TikTok in Mayberry, North Carolina, or the People’s Republic of California (sorry, I meant San Francisco), then China may learn something new about you. Perhaps something that you don’t want China to know.

Using TikTok could also allow the Chinese Communist Party to penetrate your hard drive, tablet, or phone security system to collect information about you, even when you use a different platform.

In a 2022 Legal Memorandum focused on China’s lobbying activities, The Heritage Foundation made the case that the First Amendment’s free speech clause does not prevent Congress from protecting the nation against a foreign power—specifically, China—by barring it from lobbying American officials at the federal, state, or local level at all.

The reason is that foreign governments, such as China’s, are not private parties who may invoke the free speech clause. That rationale applies with ByteDance and TikTok, too. (The Daily Signal is the news outlet of The Heritage Foundation.)

Congress’ power to regulate the use of the facilities of interstate commerce empowers it to ban the Chinese government from using them as intelligence-gathering devices. Congress can prevent China from wiretapping the American telecommunications system by recording conversations, and Congress can prohibit a foreign power from installing pen registers that identify whom Americans call. Openly using TikTok to capture the information of what individuals do and where they go on the internet is not materially different.

So, just as the greater includes the lesser, Congress has the constitutional authority to altogether exclude TikTok from the American telecommunications system if it chooses that course.

But the House-passed bill does not go that far. It gives ByteDance and TikTok the option to divorce itself from the government of China or face exclusion. As The Economist recently put it, the bill before the Senate “allows ByteDance to sell up, rather than simply shut down.”

Moreover, the bill is narrowly tailored to target only foreign adversaries—China, Russia, Iran, and North Korea—and would not affect domestic social media companies that are not controlled by those nations. As a result, the House-passed bill does not infringe on the First Amendment rights of American citizens.

Vladimir Lenin once gloated that capitalism would sell him the rope that he could use to hang that system. In our modern age, China seeks to use our own telecommunications system for the same purpose. The free speech clause does not grant the Chinese Communist Party the right to use that system as a rope.

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