For several years, we have seen a fierce debate over TikTok. We have seen people claim that the algorithms are influenced by China and specifically designed to push ideas that destabilize America. It is telling, for instance, that TikTok is banned in China—they are not willing to inflict the same social media on their own citizens that they do in America. More than a few people call it a Chinese psy-op.
These days we are seeing increasing bipartisan support for a TikTok Ban under the more vague claim that China is allegedly stealing the data of Americans (seriously, what data are they stealing, exactly?). But others have alleged that the current TikTok Ban Bill that the House passed and the Senate is considering is actually a gift of power to Biden to shut down dissent. We have seen a lot of arguments going back and forth, and one example of this is the nastiness exchanged yesterday between Tucker Carlson and Representative Dan Crenshaw. First, Carlson posted this on TSMSFKA Twitter (The Social Media Site Formerly Known As Twitter):
This is Rep. Dan Crenshaw as he walks out of the Capitol after voting to give Joe Biden the power to shut down news sites that dare to challenge him. Crenshaw tells reporter Liam Cosgrove that U.S. intel agencies don’t meddle in domestic news coverage, when of course he knows… pic.twitter.com/jcdCETV0NG
— Tucker Carlson (@TuckerCarlson) March 15, 2024
The cut off text reads:
Crenshaw tells reporter Liam Cosgrove that U.S. intel agencies don’t meddle in domestic news coverage, when of course he knows that’s untrue. Watch his face as he says it. Liar.
This led to Crenshaw shooting back:
Tucker lying for attention, as usual. Maybe since he lost his production assistants at Fox News he can no longer do basic research or read short legislation. Nothing in the TikTok bill gives anyone any authority to shut down news agencies. Tucker is mad about a bill that simply… https://t.co/MycMlCWNUf
— Dan Crenshaw (@DanCrenshawTX) March 15, 2024
The cut off text reads:
Tucker is mad about a bill that simply stops the CCP from stealing the data of tens of millions Americans and using TikTok to push their propaganda. 90% of conservatives in the House voted for this bill.
None of this is surprising, since Tucker never misses an opportunity to defend America’s enemies, and of course garner some clickbait on his Chinese TikTok account.
We thought this might be as good a time as any to try to figure out who is right, to go through the bill and try to figure out whether this merely bans TikTok and similar sites, or if it is the dangerous Trojan Horse against freedom of expression that many people claim it is. In other words, it is time for a patented Aaron Walker Deep Dive™ into the what this proposed law says.
So, we are looking at the proposed ‘‘Protecting Americans from Foreign Adversary Controlled Applications Act’,’ currently known as H. R. 7521, which was passed by the House but still requires Senate approval, before it can go to Biden’s desk.
Early on it has a bit stating the purpose of the bill:
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.
Now, this kind of language is what we call a preamble. It is not operative language. We’ll get to the operative language in a moment, but language in a preamble has no direct legal effect. Now, it can influence how the rest of the language is interpreted, but that is the extent of it.
Incidentally, in D.C. v. Heller, 554 U.S. 570 (2008) the Supreme Court said that part of the Second Amendment was also a preamble. Here’s what the amendment said:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Thus, the Supreme Court has said—and we tend to agree—that the bit where it says ‘A well regulated Militia, being necessary to the security of a free State’ is a preamble that has no legal effect. If the founders wanted that language to have any effect, they would have written something more like this:
The right of the people to keep and bear Arms while in a well regulated Militia shall not be infringed.
So all the people debating the meaning of that preamble clause are missing the fact that it is ultimately of limited relevance at best.
Returning to the TikTok Ban Bill, let’s get to that operative language. Looking at the pdf provided by Congress’ official website, we jump ahead to ‘SEC. 2. PROHIBITION OF FOREIGN ADVERSARY CONTROLLED APPLICATIONS’ and find the general prohibition under this bill:
(1) PROHIBITION OF FOREIGN ADVERSARY CONTROLLED APPLICATIONS.—It shall be unlawful for an entity to distribute, maintain, or update (or enable the distribution, maintenance, or updating of) a foreign adversary controlled application by carrying out, within the land or maritime borders of the United States, any of the following:
(A) Providing services to distribute, maintain, or update such foreign adversary controlled application (including any source code of such application) by means of a marketplace (including an online mobile application store) through which users within the land or maritime borders of the United States may access, maintain, or update such application.
(B) Providing internet hosting services to enable the distribution, maintenance, or updating of such foreign adversary controlled application for users within the land or maritime borders of the United States.
Now, before we get to the next operative portion, we think it is a good idea to start looking at the definitions being applied here. The key term we think is ‘foreign adversary controlled application’ and that raises many questions. For instance, what counts as a foreign adversary? This author is perfectly happy calling China one, but who else might qualify? Is Russia a foreign adversary, for instance? Should they be? What about Cuba? Venezuela? Furthermore, what counts as control? And for that matter, what counts as an application?
So, we will jump ahead to subsection (g) which deals with definitions. And the first one they provide is this definition of ‘controlled by a foreign adversary.’
(1) CONTROLLED BY A FOREIGN ADVERSARY.—The term ‘controlled by a foreign adversary’ means, with respect to a covered company or other entity, that such company or other entity is—
(A) a foreign person that is domiciled in, is headquartered in, has its principal place of business in, or is organized under the laws of a foreign adversary country;
(B) an entity with respect to which a foreign person or combination of foreign persons described in subparagraph (A) directly or indirectly own at least a 20 percent stake; or
(C) a person subject to the direction or control of a foreign person or entity described in subparagraph (A) or (B).
Let’s clear up something that might be confusing to people. In the law, a ‘person’ does not have to be a flesh and blood person. It also can be a number of legal entities, such as corporations. In fact, typically if they mean a flesh-and-blood human being, and only a flesh-and-blood human being, they will call them individuals, because the law is weird that way. So, you are all individuals.
To translate a bit more from legalese to English, ‘or’ usually means ‘any one of these things.’ Like if a law says that ‘a county clerk cannot be a person who had been convicted of perjury or fraud,’ it means that a conviction for perjury is sufficient to disqualify, and so is a conviction for fraud—or both. It’s better expressed as ‘and/or.’ Typically—and there are exceptions—’and’ means that you have to have all of the elements listed. So, a law saying that ‘no person shall be married unless they are currently single, over the age of 18, and the proposed partner is not related to that person’ that means all of those conditions have to be satisfied. If one element is missing under a law worded that way, you can’t get married.
So, what counts as controlled by a foreign adversary starts off pretty reasonably—putting aside the definition of a ‘foreign adversary’ for now. Part (A) makes the most sense. We are less sympathetic to pretending that it only takes 20% of stock to control a company in part (B). Consider this hypothetical—and we are truly making this up. Imagine Xi Jinping owns 49% of TruthSocial stock, but Donald Trump owns 51% of it. So, if there is a vote among shareholders on any topic, who wins the argument? Donald Trump, every single time. So how can we say that 20% amounts to control?
Still, it’s a bright line rule, and it is not easy to manipulate it, so we are less worried about it.
The part that troubles us is part (C) which covers ‘a person subject to the direction or control of a foreign person or entity described in subparagraph (A) or (B).’ Here, a ‘person’ can easily be a corporation or similar business entity. So, what counts as ‘direction or control’ by foreign persons or entities? Many countries, for instance, purport to tell people what they can and can’t say online under the guise of hate crime laws. Does that mean that any social media application that obeys those laws are subject to foreign control? Sometimes foreign countries will actually command social media companies to remove specific posts through a court order. Does obedience to those rulings amount to being controlled by that country?
Indeed, how coercive does it have to be to count as control? For instance, we are old enough to remember how, early in the Clinton presidency, Saturday Night Live made fun of Chelsea Clinton. Wayne’s World was doing a bit where they listed hottest babes or something to that effect and toward the top of the list was the young Clinton, who was around 12 years old at the time. If we recall correctly, they pretended to praise her as a ‘babe’ and then shouted ‘NOT!’ and started making fun of her, essentially calling her ugly. Again, they were doing this to a preteen girl. Reportedly a phone call was made from the White House to the people who make SNL. After that, everyone involved in the sketch apologized and, in later reruns, they edited out that part—you literally can’t see what they said anymore. And while we are not typically fans of presidents putting pressure on television networks regarding content, we give the Clintons a mulligan on that as long as they only asked them to cut that out, with no threats, because it was wrong to attack a young girl who did nothing to make herself fair game. We thought it was pretty ugly the moment we saw it, and we are glad the people at SNL saw the light.
But would you say that by backing off and apologizing, that SNL was suddenly controlled by the U.S. President?
On the other hand, if you know how the current regime in China works, you know that very often control is not formal—like owning stock in a company—but simply amounts to China saying to a movie studio ‘if you want to distribute your huge blockbuster movie in China, you’re going to have to edit this other movie to eliminate your criticism of China’ and other examples of subtle influence. So we understand the origin of this vague ‘subject to the direction or control of a foreign person or entity’ language. But we would be concerned about how it might be abused.
After all, not to put too fine a point on it, but how many times have we seen people make specious claims that a certain person or news outlet are doing Putin’s bidding?
Next up, we have the definition of ‘covered company’ and it starts to give us a clue to the meaning of another term: ‘application.’ The use of the term application—or the short form ‘App’—has been popularized in the last decade or so to apply to programs alone, but when you start to read the definition of covered company you start to see that in this bill, the definition of 'Application' can include websites:
(A) IN GENERAL.—The term ‘covered company’ means an entity that operates, directly or indirectly (including through a parent company, subsidiary, or affiliate), a website, desktop application, mobile application, or augmented or immersive technology application that—
(i) permits a user to create an account or profile to generate, share, and view text, images, videos, real-time communications, or similar content;
(ii) has more than 1,000,000 monthly active users with respect to at least 2 of the 3 months preceding the date on which a relevant determination of the President is made pursuant to paragraph (3)(B);
(iii) enables 1 or more users to generate or distribute content that can be viewed by other users of the website, desktop application, mobile application, or augmented or immersive technology application; and
(iv) enables 1 or more users to view content generated by other users of the website, desktop application, mobile application, or augmented or immersive technology application.
(B) EXCLUSION.—The term ‘covered company’ does not include an entity that operates a website, desktop application, mobile application, or augmented or immersive technology application whose primary purpose is to allow users to post product reviews, business reviews, or travel information and reviews.
Thus, they seem to be talking about more than just applications as programs, but people/ companies who merely operate websites. And that, to a certain extent, makes sense. For instance, TikTok is available on the web as just a website, as is TSMSFKA Twitter, and pretty much every other form of social media. They might be better in their Apps, but they can operate without them. And if you read the entire bill, you see that they always include mere website when talking about applications.
So, we understand why they want websites to be covered. We see the good intentions that might have paved the road to hell. But it definitely does risk taking us to ‘hell’ because the result is that pure websites might be covered and that is troubling.
Like, let’s ask an obvious question? Would the Townhall ‘family’ of websites (including this site) be covered—if it could be claimed we are controlled by a foreign adversary? The answer seems to be ‘yes.’ First off, any website with a comment section could be covered, because it allows users to ‘create an account or profile to generate, share, and view text, images, videos, real-time communications, or similar content’ satisfying part (i). Of course, you can only comment on these sites if you are a VIP member (consider joining the conversation and becoming a VIP member with the code below, before Biden makes it illegal!), but you definitely can comment and nothing in the definition of covered company requires the accounts to be free to the public at large. Second, the Townhall family allow such ‘users to generate or distribute content that can be viewed by other users of the website, desktop application, mobile application, or augmented or immersive technology application’ and we make it possible for such ‘users to view content generated by other users of the website, desktop application, mobile application, or augmented or immersive technology application’—you know, because other VIP members can see the comments of VIP members. That satisfies parts (iii) and (iv), and so as long as it hits the 1 million active users threshold required by (ii), that is enough to be a covered company.
You might say in response ‘okay, so we just have to shut down the comments section, that’s all.’ Obviously, that would mean that this legislation has the effect of stifling speech, but even doing that isn’t enough. After all, each of these websites in the Townhall family has various writers and editors who also generate content that can be viewed by other users of the site. This author you are reading right now is arguably a user who is generating content to be viewed by other users of this website (the readers).
Further, technically, you only need one person who generates the content, to be viewed by other users of the website. So even if we suddenly fired everyone but one of our writers, that last writer would still arguably be a ‘user’ who is able to create content that is available to be viewed by other users and so on. Once again, that would seem to satisfy (i), (iii) and (iv) of the definition of ‘covered company’ and the only issue left is the million user threshold.
So not only would seem to cover this cover the Townhall family—including Twitchy—this would seem to cover The Washington Post, or The Washington Times, if they are accused of foreign control.
Additionally, there is the strangeness of the exclusion of essentially pure review websites. The problem with that is that it transforms this into a content-based regulation, which has to survive strict scrutiny under the First Amendment. We won’t go too deep into that, except to say that it is unlikely for the courts to find that this is narrowly tailored to serve a compelling purpose. Ironically, they would have been better off without that language.
Moving on through the bill, we get this definition next:
(3) FOREIGN ADVERSARY CONTROLLED APPLICATION.—The term ‘foreign adversary controlled application’ means a website, desktop application, mobile application, or augmented or immersive technology application that is operated, directly or indirectly (including through a parent company, subsidiary, or affiliate), by—
(A) any of—
(i) ByteDance, Ltd.;
(ii) TikTok;
(iii) a subsidiary of or a successor to an entity identified in clause (i) or (ii) that is controlled by a foreign adversary; or
(iv) an entity owned or controlled, directly or indirectly, by an entity identified in clause (i), (ii), or (iii); or
(B) a covered company that—
(i) is controlled by a foreign adversary; and
(ii) that is determined by the President to present a significant threat to the national security of the United States following the issuance of—
(I) a public notice proposing such determination; and
(II) a public report to Congress, submitted not less than 30 days before such determination, describing the specific national security concern involved and containing a classified annex and a description of what assets would need to be divested to execute a qualified divestiture.
We brought up Bills of Attainder the other day and a little quick googling does seem to suggest that it is an open question of whether that clause protects corporations as well as actual human people. To briefly explain our point, a Bill of Attainder is where the legislature declares a person guilty of a crime and singles that person out for punishment. The Constitution explicitly prohibits Bills of Attainder. So, the part of the bill that singles out ByteDance and TikTok might be ruled unconstitutional. Much later in the bill, it says basically if this part of this bill is deemed unconstitutional, the rest still remains—implying that they knew it might be a problem. So, even if the courts decide that they couldn’t single out those companies under subsection (A), they can still be covered by the general language in subsection (B). And in any case, subsection (B) is probably the part you would worry about the most, if you are concerned that it might be used as Trojan Horse for censorship.
Focusing on the general subsection, you will notice that it does not define key terms like ‘foreign adversary’ and ‘significant threat to the national security.’
The definition of foreign adversary does come in the very next definition:
(4) FOREIGN ADVERSARY COUNTRY.—The term ‘foreign adversary country’ means a country specified in section 4872(d)(2) of title 10, United States Code.
Thus we flip through the U.S. Code book (okay, the Cornell University website) to 10 U.S.C. § 4872(d)(2) and we get this:
(2) Covered nation.—The term ‘covered nation’ means—
(A) the Democratic People’s Republic of North Korea;
(B) the People’s Republic of China;
(C) the Russian Federation; and
(D) the Islamic Republic of Iran.
So, basically, North Korea, China, Russia and Iran and no one else. If the company is allegedly controlled by the British government, that won’t be enough to qualify as controlled by a foreign adversary, because they aren’t on that list. But the same can also be said for several countries that maybe we should include, like Cuba or Venezuela. Would anyone feel better about TikTok if suddenly it was controlled by Venezuala?
Furthermore, what counts as a threat to national security? Well, there is no definition in this bill, or in the U.S. Code we are aware of.
So, we should be concerned. For instance, let’s imagine we live in an alternate universe where we never learned about Hunter Biden’s laptop from hell and let’s imagine that this bill becomes law. Then imagine that in October, the New York Post comes out with the Hunter Biden laptop story. As we said a moment ago, the Washington Post is probably a covered entity and the New York Post would be, too. We will assume that the New York Post was not formerly controlled by any of these foreign adversaries in a way that meets the bill, but the bill can be satisfied if the Post merely acts at the ‘direction or control of a foreign person or entity’ that is controlled by those foreign adversaries. Now, in the real world, we saw how 51 former intelligence officials falsely claimed the laptop story of being Russian disinformation …
Intel officials that signed Hunter Biden laptop ‘disinfo’ letter will talk to House panel https://t.co/8g79kVHJCk pic.twitter.com/qYpvaYlPog
— New York Post (@nypost) May 5, 2023
… and this was used as an excuse by multiple social media sites to crack down on people sharing links to the story—even in private messages. How much harder would be it be for Biden administration to say that the NY Post is acting under the direction of Vladimir Putin and make it illegal for their website to even exist? Of course, he would also have to claim that there is a significant threat to national security, but all he has to say is something about foreign influence over our elections and now he has the power to essentially shut down the NY Post.
And let’s go back to a section we didn’t focus on a minute ago in the definition of ‘Foreign Adversary Controlled Application’ where the more general definition applies to:
(B) a covered company that—
(i) is controlled by a foreign adversary; and
(ii) that is determined by the President to present a significant threat to the national security of the United States …
The bill goes on to list some procedural steps, such as putting out notice, and informing Congress, but there is no obvious way that this bill limits the president’s power to make this determination.
So that is troubling.
But let’s rewind back to the section on the prohibition in question—before we veered off into the definitions of words. After the provisions making it illegal to let these foreign controlled applications run, there is a section on applicability that basically says that if it is ByteDance or TikTok, the bill applies 180 days after the enactment of this law—so about six months. If the bill became law tomorrow, that would be roughly the middle of September. Meanwhile, if it is something else designated a Foreign Adversary Controlled Application by the Biden administration, that goes into effect 180 days after that determination.
So, that limits Biden’s ability to shut down a website in a fit of rage. If the NY Post publishes something damaging in October that makes Biden want the site shut down, he won’t be able to do it before the election.
But that doesn’t stop Biden from doing it pre-emptively. He could declare, for instance, that by publishing the laptop from hell coverage, the NY Post demonstrated that it was controlled by Putin. If the bill became law tomorrow, and Biden issued that determination the next day, he could have the NY Post shut down in plenty of time before the election.
Moving on, the bill also provides that if your favorite website is being shut down, you can get a copy of all your data:
(b) Data And Information Portability To Alternative Applications.—Before the date on which a prohibition under subsection (a) applies to a foreign adversary controlled application, the entity that owns or controls such application shall provide, upon request by a user of such application within the land or maritime borders of United States, to such user all the available data related to the account of such user with respect to such application. Such data shall be provided in a machine readable format and shall include any data maintained by such application with respect to the account of such user, including content (including posts, photos, and videos) and all other account information.
‘Shall’ is typically legalese for ‘you have to do this.’ So, if YouTube is declared a Foreign Adversary Controlled Application, and you happen to be a YouTuber, then now you can force YouTube to give you a free copy of all of your videos. While that is nice for the YouTuber, that is extremely expensive for the company and is arguably an additional penalty.
The next section provides some exemptions that apply if the company properly removes the foreign influence, and exempts services that are needed to comply with the rest of the bill. We are not going to go deeper into those parts than that, because we see no significant issue with them.
Then we get to enforcement. They start off with civil penalties:
(1) CIVIL PENALTIES.—
(A) FOREIGN ADVERSARY CONTROLLED APPLICATION VIOLATIONS.—An entity that violates subsection (a) shall be subject to pay a civil penalty in an amount not to exceed the amount that results from multiplying $5,000 by the number of users within the land or maritime borders of the United States determined to have accessed, maintained, or updated a foreign adversary controlled application as a result of such violation.
(B) DATA AND INFORMATION VIOLATIONS.—An entity that violates subsection (b) shall be subject to pay a civil penalty in an amount not to exceed the amount that results from multiplying $500 by the number of users within the land or maritime borders of the United States affected by such violation.
The first subsection (A) is dealing with the penalty for being a foreign adversary controlled company and it’s potentially catastrophic. The second (B) deals with that right of users to receive their data.
Next, we find out what Merrick Garland can do:
(2) ACTIONS BY ATTORNEY GENERAL.—The Attorney General—
(A) shall conduct investigations related to potential violations of subsection (a) or (b), and, if such an investigation results in a determination that a violation has occurred, the Attorney General shall pursue enforcement under paragraph (1); and
(B) may bring an action in an appropriate district court of the United States for appropriate relief, including civil penalties under paragraph (1) or declaratory and injunctive relief.
So (A) basically says that Garland can basically file those expensive civil suits we just mentioned, but we saw no indication that private individuals can’t do the suing themselves. He also can seek an injunction stopping these entities from operating in the United States. That means he can get a court order requiring people to do specific things.
There is also a section on how the bill is to be constructed (i.e. ‘interpreted’). Most of it is obvious, but this is an interesting wrinkle:
Nothing in this Act may be construed …
(2) to authorize the Attorney General to pursue enforcement, under this section, against an individual user of a foreign adversary controlled application…
So at least they can’t go against an individual user of the forbidden websites. Small comfort, that.
Finally, we get to judicial review:
SEC. 3. JUDICIAL REVIEW.
(a) Right Of Action.—A petition for review challenging this Act or any action, finding, or determination under this Act may be filed only in the United States Court of Appeals for the District of Columbia Circuit.
(b) Exclusive Jurisdiction.—The United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction over any challenge to this Act or any action, finding, or determination under this Act.
So, if you don’t like what they are doing, you can only go to the D.C. Circuit—one of the most liberal in this country. The part on judicial review continues:
(c) Statute Of Limitations.—A challenge may only be brought—
(1) in the case of a challenge to this Act, not later than 165 days after the date of the enactment of this Act; and
(2) in the case of a challenge to any action, finding, or determination under this Act, not later than 90 days after the date of such action, finding, or determination.
So, if you think this entire bill is garbage, you only have less than six months to challenge it. If you only think one determination under this potential law is garbage, you have only about three months to challenge it.
And that is about it for the bill. Of course, in this discussion we haven’t gone over every word in the bill—for instance, we skipped over some specifics about how divestiture would happen—but we think we hit the most important parts.
So, to return to our question at the beginning, who is right? Not just between Crenshaw and Carlson, but between the people who think this bill is a good idea and will not impact freedom of expression for Americans and the people who think this is a Trojan Horse for censorship.
Well, we think the people who think this bill is a bad idea have the better of this debate.
Still, we tend to approach things positively and prefer to offer ways to fix a bill, if possible. So, just spitballing, this author thinks that first, the determination that a particular site is a Foreign Adversary Controlled Application should be done first in court, and we don’t think it should be limited to the D.C. Circuit. That is, the administration can argue that the designation should apply, but it doesn’t apply until a court signs off, with a full and fair opportunity for the person/entity to defend themselves. Furthermore, there needs to be a definition of terms like ‘direction or control of a foreign person or entity’ and ‘significant threat to the national security of the United States.’ Finally, to limit this to true social media sites, we think they reign in the definition of ‘user’ to mean more than just passive readers, and require there to be at least a million users to qualify, and remove from coverage mere comment sections. Perhaps we are missing something (we would love to hear your suggestions in the comments), but we think that goes a long way toward fixing this bill.
So, those are ways we think the bill can be improved. But, without significant improvement, we think this bill needs to be voted down, or tied up in filibuster.
And honestly, we don’t know how Crenshaw can say what he was saying in the Tweet we quoted or in the video interview. We won’t say he was lying—we feel like that accusation is thrown around too freely these days and it requires us to know just how much he knew—but if he honestly doesn’t see how this potential law could be abused, then he lacks imagination. And, really, if he hasn’t read up on the way government agencies have manipulated social media in the past, we suggest that he read up on the Missouri v. Biden litigation. He can start here. If he looks at the history of what they have done, it is that much easier to understand what they could do with this bill, if it becomes law.
In the end, the founders didn’t just trust that no one would ever do anything bad under the Constitution. They created checks and balances, so that one person didn’t have too much power in our system, believing that in the distribution of power, cooler heads will prevail and freedom will be preserved. We think the bill can be fixed, but right now it concentrates too much power in the hands of one person. If those hands turn out to be the wrong ones, it could be disastrous for this Republic.
***
Editor’s Note: Do you enjoy Twitchy’s conservative reporting taking on the radical left and woke media? Support our work so that we can continue to bring you the truth. Join Twitchy VIP and use the promo code SAVEAMERICA to get 50% off your VIP membership!
Join the conversation as a VIP Member