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Legal Sidebari
Restricting TikTok (Part II): Legislative
Proposals and Considerations for Congress
March 28, 2023
This Legal Sidebar is the second installment in a two-part series on U.S. efforts to regulate the video-
sharing application (app) TikTok. The first installment provided legal background on executive branch-led
efforts to restrict TikTok’s U.S. presence and operations. This Sidebar analyzes proposals to create new
authorities to restrict TikTok and examines constitutional and other legal issues for Congress to consider.
Legislative Proposals
Against the backdrop of executive branch efforts discussed in Part I of this series, some Members of the
118th Congress have debated whether new legislation is needed to address TikTok’s alleged national
security risks. The 117th Congress took legislative action by passing the No TikTok on Government
Devices Act, which mandates the app’s removal from executive branch information technology systems.
The President signed this act on December 29, 2022. Several legislative proposals in the 118th Congress
would take more far-reaching actions by authorizing or requiring the executive branch to restrict
transactions involving TikTok in ways that could result in a nationwide ban of the app. Some of the
distinctions among bills are outlined in Table 1.
Trends in Bills that Would Authorize or Require TikTok Bans
While each bill has unique provisions, general trends across multiple bills include the following features.
Removing IEEPA Exceptions: One common element in many TikTok-related bills is to eliminate
exceptions to the President’s statutory powers under the International Emergency Economic Powers Act
(IEEPA). These proposed provisions seek to address the legal grounds discussed in Part I on which two
courts enjoined the Trump Administration’s August 2020 executive order (2020 Order) that would have
imposed a nationwide ban of TikTok. Examples of legislation in this category include the No TikTok on
United States Devices Act (H.R. 503/S. 85) and the Averting the National Threat of Internet Surveillance,
Oppressive Censorship and Influence, and the Algorithmic Learning by the Chinese Communist Party Act
(ANTI-SOCIAL CCP Act, H.R. 1081/S. 347).
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Removing IEEPA Exceptions and Adding New Authorities: Some bills that would eliminate IEEPA
exceptions would also provide the executive branch new authorities and obligations beyond IEEPA. The
Protecting Personal Data from Foreign Adversaries Act (H.R. 57), for example, would authorize the
President to invoke IEEPA and impose visa restrictions in response to certain foreign entities’ misuse of
social media apps. The Stopping Attempts by Foreign Entities to Target Youths on Social Media Act of
2023 (SAFETY on Social Media Act of 2023, S. 872) would authorize IEEPA actions, mandate visa
restrictions on foreign persons employed by designated companies, and require U.S. nationals employed
by designated companies to register as foreign agents under the Foreign Agents Registration Act. The
Deterring America’s Technological Adversaries Act (DATA Act, H.R. 1153) would allow the President to
use IEEPA authorities while also giving the Secretary of the Treasury new powers to prohibit transactions
with parties that knowingly provide sensitive personal data of persons subject to U.S. jurisdiction to
companies subject to the PRC’s ownership, control, jurisdiction, or influence.
Non-IEEPA Based Review Systems: Some legislation would create new systems, not linked to IEEPA,
to review transactions for national security risks. For example, the SAFETY on Social Media Act of 2023
would require the Federal Communications Commission (FCC) to issue rules that prohibit certain entities
designated by the President from being carried in app stores and rules that require internet service
providers to block designated entities from receiving internet services. The Restricting the Emergence of
Security Threats that Risk Information and Communications Technology Act (RESTRICT Act, S. 686)
would authorize two new non-IEEPA-based national security review programs. The RESTRICT Act
invokes elements of two existing review systems discussed in Part I of this Sidebar: the Information and
Communications Technology and Services (ICTS) supply chain rule (Supply Chain Rule) and the
Committee on Foreign Investment in the United States (CFIUS). Unlike the Supply Chain Rule, the bill’s
proposed process to review ICTS transactions would not depend on IEEPA for its underlying authority,
and therefore would not be subject to IEEPA’s exceptions. The RESTRICT Act would also create a new
CFIUS-like process for the executive branch to review foreign adversaries’ holdings (i.e., investments) in
ICTS companies. Biden Administration officials have expressed support for the bill.
Trends in Related Legislation
While the bills discussed above would authorize actions that could result in a national ban of TikTok, not
every TikTok-related proposal contains authority to ban the app. During a hearing with TikTok’s CEO
before the House Energy and Commerce Committee on March 23, 2023, some Members of Congress
discussed limiting TikTok’s potential national security risks by expanding data privacy frameworks to
apply more stringent privacy protections to a broader set of entities. Some Members suggested the
American Data Privacy and Protection Act, which was introduced in the 117th Congress and is examined
in this Legal Sidebar, could be a legislative avenue to obligate TikTok to embrace greater data privacy.
Other legislative proposals would have created new restrictions on cross-border transfer of personal data
by subjecting some categories of personal data to export controls. Another set of bills would require
companies to provide notices to U.S. users if the companies’ apps are banned from U.S. government
devices, have certain connections to the PRC or Chinese Communist Party (CCP), or allow the PRC or
CCP to access Americans’ user data. Some Members have proposed mandating algorithmic transparency
to address concerns over PRC and CCP influence on TikTok’s video-recommendation methods. Still other
legislative proposals would restrict TikTok in limited sectors, such as college campuses.
Considerations for Congress
Any time Congress considers legislation that could allow the United States to regulate private commercial
transactions on national security grounds, a variety of constitutional and legal considerations, examined in
this CRS Legal Sidebar, may be relevant. Given TikTok’s popularity and role as a platform that facilitates
personal expression and exchange of information, several issues are especially salient.
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First Amendment
Regulating mediums of expression can trigger the First Amendment’s protections for speech and
association. In the litigation challenging the Trump Administration’s restrictions on TikTok and in the
separate case challenging similar restrictions on the WeChat app, which are discussed in Part I, the
plaintiffs alleged the executive branch violated the First Amendment by shutting down these platforms for
speech. If a regulation specifically targets a medium of communication as opposed to generally regulating
a variety of businesses, it might trigger heightened constitutional scrutiny—particularly if there is
evidence the government targeted a platform because of its viewpoint or the type of speech it hosts. Even
if a regulation is aimed at a platform’s non-expressive conduct, First Amendment concerns can arise if
that law is applied to speech. For instance, the Berman Amendment added the informational materials
exception to IEEPA in response to executive branch seizures of magazines and books that Congress said
were protected by the First Amendment.
While foreign corporations outside U.S. territory do not benefit from First Amendment rights, separately
incorporated organizations within the United States may enjoy First Amendment protections. Further, the
Supreme Court has long recognized that U.S. citizens have a right to receive information and ideas from
abroad. TikTok and WeChat users in the United States also challenged the Trump Administration
restrictions by raising their own rights to receive and share content.
Assuming that a particular regulation broadly affects all speech on the regulated platform and does not
target particular viewpoints or types of content, a court would likely review any First Amendment claims
under an analysis known as intermediate scrutiny. This constitutional standard applies to regulations that
are content-neutral, or only incidentally restrict speech in the course of permissibly regulating conduct.
The standard generally requires the government to show the regulation “furthers an important or
substantial governmental interest” that is “unrelated to the suppression of free expression,” and that “the
incidental restriction on alleged First Amendment freedoms is no greater than is essential to the
furtherance of that interest.” Courts might also ask whether a regulation “leave[s] open ample alternative
channels for communication” of the affected speech. (It is also possible certain types of regulations might
be challenged as prior restraints on speech, triggering additional constitutional considerations.)
The court reviewing the WeChat ban concluded that the restrictions likely failed intermediate scrutiny.
The court acknowledged the government’s significant interests in national security—an area where courts
have sometimes been more deferential to the political branches. Nonetheless, the court concluded the
restrictions were not appropriately tailored to this interest, noting “obvious alternatives to a complete ban,
such as barring WeChat from government devices . . . or taking other steps to address data security.”
Courts applying intermediate scrutiny must look closely at the government’s evidence to ensure “that the
recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a
direct and material way.” This inquiry is heavily dependent on context, and Congress might consider
whether to include evidence demonstrating these elements in the legislative record.
Due Process
Congress may also consider whether TikTok-related bills afford sufficient safeguards to comply with
procedural due process standards. When a person is deprived of a protected property right, the Fifth
Amendment’s Due Process Clause requires the United States to provide notice of the government action
and a meaningful opportunity to contest it. Due process protections apply to foreign individuals and
entities that enter U.S. territory and establish substantial connections with the United States. In one
relevant example, a federal court of appeals held that, before the President could order a PRC-based
company to divest an acquisition under the CFIUS process, the government needed to provide the
affected company with the unclassified information on which it based its decision and the chance to
respond. Due process standards may be different when Congress directly affects property rights through a
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legislative determination rather than through a judicial or administrative process. For legislative
determinations, the legislative process may provide “all the process that is due” unless the law is palpably
arbitrary.
Takings Clause
Litigants have sometimes argued that U.S. restrictions on cross-border transactions and investments
violate the Fifth Amendment’s Takings Clause, which prohibits the United States from taking private
property for public use without just compensation. The Takings Clause applies to the actual acquisition of
property and to regulatory actions that so severely restrict a property owner’s rights that they rise to the
level of a regulatory taking. In the context of foreign actors asserting constitutional rights, the Takings
Clause protects foreign individuals and entities with substantial connections to the United States,
including those whose property in the United States is taken by the federal government. Although Takings
Clause challenges to IEEPA-based actions have been largely unsuccessful, some plaintiffs continue to
raise them. In TikTok’s challenge to the 2020 Order, for example, the company argued that President
Trump’s discussion of securing a payment to the Department of the Treasury if TikTok were to be sold to
an American company amounted to an attempt to secure an unconstitutional taking. This issue did not
ultimately feature in the court’s opinion, as the court based its decision on IEEPA interpretation issues.
Bill of Attainder
The Bill of Attainder Clause has also been a topic of discussion in TikTok-related legislation. This clause
prohibits Congress from using legislation to determine guilt and inflict punishment without a judicial trial.
As explored in this CRS In Focus, there are several unresolved questions about whether the clause applies
to modern economic restrictions on foreign corporations. In two recent judicial challenges, courts held
that legislation restricting transactions with PRC-based Huawei and Russia-based Kaspersky Lab did not
violate the Bill of Attainder Clause because the laws sought to protect U.S. security, not punish a private
actor.
Other Legal Considerations
Apart from constitutional considerations, Congress may consider procedural and statutory issues that
could affect how proposed TikTok restrictions operate. A selection of these issues, which are also
examined in Table 1, are discussed below.
Judicial review: Congress could consider legislative mechanisms to limit or streamline judicial review of
challenges to any new transaction-restriction authorities it enacts. Some existing statutes limit judicial
review of similar restrictions by exempting the decision to impose restrictions from the Administrative
Procedure Act (APA) or from judicial review in general. Some laws require legal challenges to be brought
before a specific court—usually, the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) because of
its familiarity with special procedures in cases involving classified information. Among TikTok-related
bills, the RESTRICT Act would limit judicial review to actions that are “unconstitutional or in patent
violation of a clear and mandatory statutory command” and give the D.C. Circuit exclusive jurisdiction
over those cases.
Classified and Other Sensitive Information: In anticipating judicial challenges, Congress may consider
prescribing how courts handle classified and other legally protected information during litigation. The
CFIUS statute is one example of streamlined procedures. It provides that, if a court determines that
classified or other protected information that is in the administrative record is necessary to resolve a legal
challenge, that information must be submitted ex parte and in camera (i.e., only the court may view it)
and maintained under seal so that it cannot be made public. The CFIUS statute also exempts the United
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States from statutory requirements to provide notice to U.S. persons when using information obtained
under the Foreign Intelligence Surveillance Act of 1978 (FISA).
Confidentiality and Freedom of Information Act: When Congress creates new processes to review
private commercial transactions, it may seek to balance public interest in the process with the private
entities’ desire for confidentiality. Some existing national security review systems prohibit the
government from disclosing parties’ private information gathered during the review process unless an
exception applies. CFIUS’s legal authorities provide even stricter confidentiality by stating that materials
submitted during its review process are exempt from the Freedom of Information Act (FOIA) absent an
exception. Among the bills in Table 1, the DATA Act places certain special confidentiality requirements
on Congress, and the RESTRICT Act generally incorporates CFIUS’s confidentiality rubric and FOIA
exemption.
Naming TikTok: Another topic of discussion is whether legislation should identify TikTok by name.
Whether TikTok is identified in a bill’s text could be relevant in a Bill of Attainder challenge as part of a
broader argument that the government targeted the company for punishment. The issue might also feature
in the due process context if Congress were to make a legislative determination that TikTok presents a
national security threat. Some proposals in the 118th Congress expressly include TikTok among a defined
set of entities with whom transactions would be restricted. Other bills name TikTok, but do not mandate
that the bill’s restrictions apply to it. Instead, these proposals would require a presidential determination
on whether the bill’s provisions apply to the company. A third set would create transaction-review
frameworks that the executive branch could interpret to include TikTok, but that do not name the
company in the legislative text.
Congressional Oversight: Congress may consider options to ensure that it is informed about executive
branch actions in implementing any legislation that passes and can exercise effective oversight. For
example, the No TikTok on American Devices Act would require the executive branch to provide a
classified briefing on its implementation of the bill. Another example is the DATA Act, which would
require the President to share information about the bill’s implementation with designated congressional
committees. The DATA Act also proposes to facilitate greater congressional involvement by requiring the
President to respond to the designated committees’ requests for determinations on whether specific
individuals or entities are subject to the bill’s sanctions and restrictions.
Table 1. Comparison of Select TikTok Bills Introduced in the 118th Congress
H.R. 57:
Protecting
H.R. 503 / S.
Personal
H.R. 1081 /
85: No
Data from
S. 347:
S. 872:
TikTok on
Foreign
S. 686:
ANTI-
SAFETY on
American
Adversaries
H.R. 1153:
RESTRICT
SOCIAL
Social Media
Devices Act
Act
DATA Act
Act
CCP Act
Act of 2023
Actions
Invoke IEEPA
Invoke IEEPA; Title I: Prohibit § 3: Investigate,
Invoke
§ 4: Invoke
Authorized
visa
specified
prohibit,
IEEPA
IEEPA;
restrictions
transactions;
regulate, and
§ 5: ban from
Title II: Invoke
mitigate covered
app stores and
IEEPA
transactions;
prohibit and
§ 4: compel
internet
divestment or
services;
mitigate risk of
§ 6: visa
covered
restrictions,
holdings
foreign agent
registration
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H.R. 57:
Protecting
H.R. 503 / S.
Personal
H.R. 1081 /
85: No
Data from
S. 347:
S. 872:
TikTok on
Foreign
S. 686:
ANTI-
SAFETY on
American
Adversaries
H.R. 1153:
RESTRICT
SOCIAL
Social Media
Devices Act
Act
DATA Act
Act
CCP Act
Act of 2023
Exercising
President
President
Title I:
§ 3: Secretary of
President
§ 4: President,
Official or
(IEEPA); State
Secretary of
Commerce;
§ 5: FCC;
Agency
Dep’t (visa
the Treasury;
§ 4: President
§ 6: State
restrictions)
Title II:
Dep’t (visas);
President
Justice Dep’t
(registration)
IEEPA
All IEEPA
All IEEPA
Personal
Not applicable
All IEEPA
All IEEPA
Exceptions
exceptions
exceptions
communication
exceptions
exceptions
removed
removed
and info.
removed
removed
materials
exceptions
removed
Authorizes
No
Yes
No
No
No
Yes
Visa
Restrictions
Covered
Transactions
Transactions
Title I:
Transactions or
Transactions Transactions
Transactions
by ByteDance
using mobile
Transactions
holdings
by covered
with
(or its
application or
with those that involving foreign
social media
companies on
successor) or
software
knowingly
adversaries that
companies
a presidentially
any entity
programs
provide U.S.
pose certain
with certain
prepared list
owned by
that: (1)
persons’
undue or
connections
of foreign-
ByteDance
engage in
sensitive
unacceptable
to countries owned-or-
involved in
theft or
personal data
risks to U.S.
of concern
control ed
TikTok-related unauthorized
to certain
national security
untrustworthy
matters
transmission
PRC-
or safety of U.S.
applications
of user data
connected
persons
and social
to servers in
entities; Title II:
media entities
the PRC; and
seven
(2) provide
categories of
certain PRC-
sanctionable
related
conduct
entities access
to user data
Exceptions
Law
Compliance
Law
Certain
Intelligence
No
from Review
enforcement
with U.N.
enforcement
transactions
activities;
activities,
Headquarters
activities,
authorized
importation
national
Agreement
national
under a U.S.
of goods
security
security
government-
interests and
interests and
industrial
activities, and
activities,
security
security
security
program or that
research
research
meet national
activities
activities,
security or law
compliance
enforcement
with
functions
international
agreements
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H.R. 57:
Protecting
H.R. 503 / S.
Personal
H.R. 1081 /
85: No
Data from
S. 347:
S. 872:
TikTok on
Foreign
S. 686:
ANTI-
SAFETY on
American
Adversaries
H.R. 1153:
RESTRICT
SOCIAL
Social Media
Devices Act
Act
DATA Act
Act
CCP Act
Act of 2023
Presidential
No
Case-by-case
Case-by-case
No
No
No
Waiver
up to 180
up to 180 days
days if
if President
President
certifies vital to
certifies vital
national
to national
security
security
TikTok
TikTok named
Presidential
Presidential
No
TikTok
No
Named
as a “covered
determination determination
named as a
company”
on bil ’s
on bil ’s
“deemed
applicability to applicability to
company”
TikTok is
TikTok is
mandatory
mandatory
Confidentiality No
No
No
Confidentiality
No
No
and FOIA
congressional
procedures
Provisions
disclosure of
defined; FOIA
confidential
inapplicable
information
Classified Info. No
No
No
Yes
No
No
Procedures
and FISA
Exemptions
Congressional
Requires
Requires
Authorizes
No
No
No
Oversight
report on
report on
congressional
Provisions
national
statute’s
requests for
security threat
applicability to determinations,
posed by
TikTok
information,
TikTok within
and reports;
120 days;
requires report
briefing on
on applicability
implementation
to TikTok
within 180
days
Limits on
No
No
No
Unconstitutional No
No
Judicial
actions or
Review
patent violations
of law; D.C.
Circuit has
exclusive
jurisdiction
Sunset
No
Jan. 1, 2026
Title II
No
No
No
terminates five
years after
enactment
Source: CRS, based on information in cited bil s, as introduced.
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Author Information
Stephen P. Mulligan
Valerie C. Brannon
Legislative Attorney
Legislative Attorney
Disclaimer
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