Ever since Rep. Mike Gallagher (WI-8) introduced House Resolution 7521 — formally known as the Protecting Americans from Foreign Adversary Controlled Applications Act — early last month, there has been a whirlwind of responses: United States Sen. Thom Tillis, Republican of North Carolina, received a voicemail threatening his life if he voted in favor of the bill; President Joe Biden signaled his intention to sign the proposed legislation into law; mega-donors threatened to cut off funding to any candidates that vote for the bill; and every member of North Carolina’s congressional delegation, except Dan Bishop, NC-8, voted in favor of the bill.
In the last 14 months, concerns over TikTok have drawn scrutiny from a variety of elected officials in North Carolina. Attorney General Josh Stein won a court decision that required Tiktok to comply with his ongoing investigation regarding consumer protection laws. Gov. Roy Cooper signed an executive order prohibiting TikTok on state devices, citing “lack of sufficient privacy controls and connections to countries that sponsor or support cyber-attacks against the United States.” And the North Carolina Senate came together in bipartisan fashion and passed a bill that would codify into law the prohibition of “high risk” applications on government networks and devices.
Critics of the federal bill have voiced two main concerns: the bill violates the First Amendment rights of United States citizens; and the bill broadly increases the president’s power, which could enable them to use their new-found power against other media companies they deem as controlled by a foreign adversary.
The debate surrounding HR 7521 — which aims to divest Chinese entity ownership in TikTok — and the concerns raised are justified. However, upon closer examination of the bill’s language, and the precedents of judicial interpretations of similar statutes reveal that HR 7521 is consistent with the United States Constitution and is crucial for safeguarding our national security interests.
The first primary concern raised is whether HR 7521 infringes upon the First Amendment’s protection of freedom of speech. It is crucial to note that the First Amendment prohibits Congress from “abridging the freedom of speech” but does not prevent the regulation of non-expressive conduct, including conduct that falls into the realm of “economic activity.” HR 7521 falls into the latter category as it regulates conduct — the ownership and control of a platform — rather than restricting speech directly. This distinction is significant, as it means that the First Amendment likely does not apply directly to the bill per Sorrell v. IMS Health Inc. (2011).
Even if one were to argue that the First Amendment is implicated, the bill would have to face our most demanding constitutional test, strict scrutiny. Given the precision of the bill’s language and that it is necessary to combat a pervasive national security threat, it would likely pass the strictest of scrutiny. Moreover, per United States ex rel. Turner v. Williams (1904), ByteDance Ltd. — the foreign entity primarily regulated by HR 7521 — lacks First Amendment rights, further supporting the constitutionality of the bill’s provisions.
The second concern surrounding the increased authority vested in the president by HR 7521, and their ability to designate applications as foreign-adversary controlled stems from a misunderstanding of the bill’s language. HR 7521 clearly defines who the foreign adversaries are: China, Russia, North Korea, and Iran.
Additionally, the phrase “subject to the direction or control” in the bill is often misinterpreted to encompass vague influence or alignment with foreign interests, contrary to its plain meaning and legal precedent. The phrase, as used in similar statutes and judicial interpretations — i.e. United States v. Rafiekian (4th Cir. 2021), Attorney General v. Irish People, Ind. (1986), 18 U.S.C. § 951, 22 U.S.C. § 611, etc. — requires an actual, binding relationship akin to a traditional agent-principal relationship, where an entity is obliged to follow foreign instructions.
Congress has repeatedly used this phrase in statutes including, but not limited to, regulating agents of foreign governments and entities providing material support to terrorism. In these contexts, the phrase has been consistently interpreted to require more than mere alignment or agreement with foreign interests. Courts have ruled that individuals or entities must be subject and obedient to foreign government commands. 18 U.S.C. § 2339B(h) explicitly states that “Individuals who act entirely independently of the foreign organization to advance its goals or objectives shall not be considered to be working under the foreign organization’s direction and control.” [Emphasis added]
Applying these principles to HR 7521, it becomes clear that the bill’s provisions align with established legal interpretations and statutes. The limited authorization given to the president regarding foreign-adversary-controlled applications does not constitute broad, sweeping powers akin to a “digital PATRIOT Act” like some of HR 7521’s detractors say. On the contrary, according to Sinologist Bill Bishop, it provides a narrow, practical approach to addressing a national security threat and is well within the authority vested in the executive branch.
In conclusion, is TikTok a pernicious threat? Absolutely. However, we can’t simply sidestep the Constitution when we deem something to be a dangerous threat. That said, HR 7521 is specifically tailored to ensure that constitutional principles are upheld while helping to protect our national security interests from our foreign adversaries. Its regulation of non-expressive conduct, clear criteria for foreign adversary designation, and adherence to established legal interpretations and precedents demonstrate its constitutionality. By addressing critical concerns regarding foreign influence and control of digital platforms, HR 7521 strengthens the United States’ ability to safeguard its democratic values and security in the modern age, and therefore should be passed and signed into law ASAP.