TikTok: Frequently Asked Questions and Issues for Congress
TikTok: Frequently Asked Questions and Issues for Congress
Updated February 18, 2025
Congressional Research Service
https://crsreports.congress.gov
R48023
Congressional Research Service
SUMMARY
TikTok: Frequently Asked Questions and Issues for Congress
Since 2018, the social media application TikTok, developed and owned by ByteDance Ltd. (ByteDance), has become one of the most popular social media platforms in the United States, and has raised oversight and legislative issues for Congress. With short-form video format and sophisticated content recommendation algorithms and usability design, TikTok achieved significant market penetration in the United States, amid competition with other social media platforms such as Meta (formerly Facebook), Instagram, X (formerly Twitter), and Snapchat.
TikTok’s short-form video application was initially developed by musical.ly, a company founded in the People’s Republic of China (PRC or China) but that primarily operated in the United States. In 2018, musical.ly was acquired by ByteDance, a firm incorporated in the Cayman Islands with headquarters in Beijing, China. ByteDance relaunched musical.ly as TikTok, operated by TikTok Ltd., also incorporated in the Cayman Islands and headquartered in Los Angeles and Singapore. TikTok Ltd. is owned by ByteDance. TikTok operates in many countries, but it is not available in China.
Since TikTok’s launch in the United States, some policymakers, technical experts, and Members of Congress have expressed concerns regarding TikTok’s ownership structure and potential implications for U.S. national security and the data privacy and security of U.S. users. Some Members have argued that ByteDance, as a PRC-headquartered company, is subject to potential PRC government pressure through various PRC laws and regulations governing intelligence, cybersecurity, and data security. They argue that the PRC government could apply these laws and regulations to compel ByteDance to turn over U.S. user data. Some Members have contended that the PRC government could potentially use TikTok as a platform for influencing public opinion in the United States or conducting malign activities such as spreading misinformation or interfering in elections. Some Members have also expressed broader concerns related to TikTok’s content moderation and online safety policies, particularly those that govern online protection for minors. Proponents of TikTok emphasize its role as a platform for accessing information, sharing content, generating revenue for small businesses and entrepreneurs, as well as its relatively similar data and content moderation practices compared to other social media competitors.
To date, both the executive branch and Congress have taken actions to address concerns about TikTok’s ownership structure and implications for national security and data privacy. In 2020, the Trump Administration issued orders that would have, among other things, prohibited U.S. entities from conducting transactions with TikTok and required TikTok’s parent company ByteDance to divest from TikTok. TikTok challenged these actions in court. In January 2021, the Biden Administration rescinded some of the Trump Administration’s actions and issued new executive actions to address the broader national security implications of PRC social media platforms in the United States. In April 2024, Congress enacted the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACAA) as part of a larger appropriations bill—P.L. 118-50—which prohibits certain services from enabling the distribution, maintenance, or updating of a “foreign adversary controlled application” in the United States unless the covered application’s owners execute a “qualified divestiture” within a specified time frame. The statute expressly includes applications operated by TikTok or its parent company ByteDance in the definition of a “foreign adversary controlled” application.
Following the enactment of PAFACAA, multiple petitions were filed to enjoin its enforcement. On January 17, 2025, the Supreme Court ruled that, as applied to petitioners, the challenged provisions of PAFACAA do not violate the First Amendment, upholding the law. On January 20, 2025, President Trump signed an executive order instructing the Attorney General not to take action to enforce PAFACAA for 75 days.
This report compiles responses to frequently asked questions (FAQs) regarding TikTok, its ownership and the corporate structure of ByteDance, and potential national security and data privacy concerns related to the platform. This report also summarizes government actions that have aimed to address these concerns at the federal and state level, analyzes PAFACAA, and examines potential constitutional considerations and policy implications for certain regulations of TikTok.
R48023
February 18, 2025
Michael D. Sutherland Analyst in International Trade and Finance
Peter J. Benson Legislative Attorney
Clare Y. Cho Specialist in Industrial Organization and Business Policy
TikTok: Frequently Asked Questions and Issues for Congress
Congressional Research Service
Contents
Background ..................................................................................................................................... 1 TikTok’s Functionality, Users, and Business Operations ................................................................ 1
What is TikTok? ........................................................................................................................ 1 How many users does TikTok claim to currently have?............................................................ 1 How did TikTok become so popular? ....................................................................................... 2 Who owns TikTok? ................................................................................................................... 2 Who owns ByteDance, and where is it located? ....................................................................... 2 What is ByteDance’s relationship to the People’s Republic of China (PRC)? .......................... 3
Is TikTok available in China? .................................................................................................... 3
National Security and Data Privacy Concerns ................................................................................ 4
Is ByteDance a People’s Republic of China (PRC) company? ................................................. 4 Does the government of the People’s Republic of China (PRC) exercise control over
ByteDance? ............................................................................................................................ 4
What laws and regulations in China could influence ByteDance operations? .......................... 5
Does ByteDance share user data with the government of the People’s Republic of
China (PRC)? ......................................................................................................................... 6
Where does TikTok store user data? ......................................................................................... 7 What is Project Texas? .............................................................................................................. 7 How does TikTok moderate content and recommend content?................................................. 8
Efforts to Regulate TikTok .............................................................................................................. 8
What actions has the executive branch taken to address alleged national security risks
TikTok poses? ........................................................................................................................ 8
What are the details of the CFIUS investigation of the ByteDance acquisition of
musical.ly? ............................................................................................................................. 8
What actions followed the 2019 CFIUS investigation of the ByteDance acquisition of
musical.ly? ............................................................................................................................. 9
What actions did the U.S. government take under IEEPA authorities? ..................................... 9
Have the actions the U.S. government took under IEEPA authorities been challenged
in court? ............................................................................................................................... 10
What legislation has Congress introduced or enacted to regulate TikTok? .............................. 11
What are the main elements of PAFACAA? ........................................................................... 12 Who can be penalized under PAFACAA, and what penalties can be imposed? ..................... 13 Does PAFACAA force any ByteDance or TikTok owners to divest from either
company? ............................................................................................................................. 13
Has PAFACAA been challenged in court, and could it be challenged again? ........................ 14 What actions have been taken at the state level to regulate TikTok? ...................................... 16 Have TikTok or other entities challenged any state actions to regulate TikTok in
court? .................................................................................................................................... 17
Are foreign governments regulating TikTok? ......................................................................... 18
Potential Implications of a Ban or Divestiture of TikTok.............................................................. 18
How might a divestiture of TikTok work? .............................................................................. 18 Are there potential buyers for TikTok if it were for sale? ....................................................... 18 How would a prohibition on entities facilitating the provision or the sale of TikTok
affect other social media platforms? .................................................................................... 19
Which online service providers may be affected by PAFACAA’s prohibition of the
distribution, maintenance, or updating of TikTok in the United States? .............................. 20
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Will users in the United States be able to access TikTok after PAFACAA is in effect? .......... 22
What First Amendment considerations arise from government restriction of social
media applications? .............................................................................................................. 23
How might the Bill of Attainder Clause apply to legislation that names TikTok? .................. 25
What Takings Clause considerations might be raised by legislation that regulates
TikTok? ................................................................................................................................ 26
What Due Process considerations might be raised by government regulation of
TikTok? ................................................................................................................................ 28
Could a ban, divestiture, sale, or other efforts to regulate TikTok have broader policy
implications for digital trade? .............................................................................................. 29
Data security ..................................................................................................................... 29
Further Reading ............................................................................................................................. 30
Co-Authors and Contributors ........................................................................................................ 30
Contacts
Author Information ........................................................................................................................ 31
TikTok: Frequently Asked Questions and Issues for Congress
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Background
This report compiles frequently asked questions (FAQs) regarding TikTok, its ownership and the corporate structure of ByteDance Ltd. (hereinafter referred to as ByteDance), and potential national security and data privacy concerns related to the platform. This report also summarizes government actions that have aimed to address these concerns at the federal and state level, analyzes the Protecting Americans from Foreign Adversary Controlled Applications Act (P.L. 118-50, PAFACAA), and examines potential constitutional considerations and policy implications for certain regulations of TikTok.
TikTok’s Functionality, Users, and Business Operations
What is TikTok?
TikTok is a social media application—one of the most popular social media platforms in the United States—that allows users to easily generate, post, and share short-form videos, typically ranging from 15 to 60 seconds in length. TikTok selects and displays videos for individual users based on their user interactions (likes, shares, and comments), video metadata (hashtags, captions, and sounds), and the device and account settings (language preference, device type, etc.). TikTok is owned by TikTok Ltd., a subsidiary of ByteDance, and is the global counterpart to Douyin, ByteDance’s short-form video application that the company launched for users in China in 2016.1 TikTok and Douyin share certain core features, though they reportedly use separate algorithms tailored to promote content to their respective audiences.2
How many users does TikTok claim to currently have?
According to TikTok’s estimates, as of March 2024, its user base had more than 170 million monthly active users (MAUs) in the United States and 7 million businesses that market or advertise on the platform.3 In 2021, TikTok announced that it had surpassed more than 1 billion MAUs across the world.4 According to the Pew Research Center, TikTok “stands out for growth of its user base” among U.S. adults, with 33% of adults reporting using it in 2023, up 12% from 2021.5
1 Emma Lee, “Toutiao Parent Launches Global Competitor to musical.ly,” Technode, September 14, 2017.
2 Chumeizi Su and Bondy Valdovinos Kaye, “Borderline Practices on Douyin/TikTok: Content Transfer and Algorithmic Manipulation,” Media, Culture & Society, vol. 45, no. 8 (November 2023), pp. 1534-1549, available at https://doi.org/10.1177/01634437231168308.
3 TikTok, “Oxford Economics Reports: TikTok Contributed $24 Billion to U.S. Economy in 2023,” March 13, 2024, available at https://newsroom.tiktok.com/en-us/tiktok-economic-impact-report-2024-smb.
4 TikTok, “Thanks a Billion!” September 27, 2021, available at https://newsroom.tiktok.com/en-us/1-billion-people-on- tiktok.
5 Jeffrey Gottfried, “Americans’ Social Media Use,” Pew Research Center, January 31, 2024, available at https://www.pewresearch.org/internet/2024/01/31/americans-social-media-use/.
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How did TikTok become so popular?
Some experts attribute the rapid growth of TikTok’s user base in the United States in part to the ByteDance 2018 acquisition of competitor musical.ly, which had an estimated base of approximately 100,000 U.S. MAUs at the time of the acquisition.6 In August 2018, ByteDance officially rebranded the musical.ly app7 as TikTok and migrated musical.ly users to new TikTok accounts.8 A key feature of TikTok’s service is the company’s recommendation algorithm, which is a system that sorts, curates, and disseminates content deemed relevant to specific users.
Who owns TikTok?
TikTok Ltd., a holding company incorporated in the Caribbean Overseas British Territory of Cayman Islands, directly owns TikTok. ByteDance Ltd., a holding company incorporated in the Cayman Islands and with core business operations and leadership located in China, directly owns TikTok Ltd.9 TikTok Ltd. lists its global headquarters as Los Angeles and Singapore.10 Its Chief Executive Officer (CEO), Shou Zi Chew, a citizen of Singapore, operates out of both headquarters, according to statements Chew made to a U.S. media outlet in February 2024.11
Who owns ByteDance, and where is it located?
ByteDance is incorporated in the Cayman Islands. The company has listed its operational headquarters and primary place of business as Beijing, China (PRC or China).12 Some legal experts also note that the majority of granted patents related to ByteDance’s core software applications are registered in China and held by Beijing Douyin Information Services Co. Ltd., a subsidiary of ByteDance that houses ByteDance’s key personnel, infrastructure, and conducts the firm’s operations in China. In March 2023 testimony before the House Energy and Commerce Committee, TikTok CEO Shou Zi Chew, when asked whether ByteDance is a PRC company, said “ByteDance owns many businesses that operate in China,” and “was founded by Chinese
6 William Alan Reinsch et al., “TikTok Is Running Out of Time: Understanding the CFIUS Decision and Its Implications,” Center for Strategic and International Studies, September 2, 2020.
7 Software applications distributed to mobile device users are often referred to as “apps.” See House Judiciary Committee Subcommittee on Antitrust, Commercial, and Administrative Law, Investigation of Competition in Digital Markets: Majority Staff Report and Recommendations, Part I, 117th Cong., 2d sess., July 2022, p. 75, available at https://www.govinfo.gov/content/pkg/CPRT-117HPRT47832/pdf/CPRT-117HPRT47832.pdf.
8 Dami Lee, “The Popular Musical.ly App Has Been Rebranded as TikTok,” The Verge, August 2, 2018.
9 Marks & Clerk, “Artificial Intelligence Fuels TikTok’s Popularity; but Could That Very Asset Prevent Its Sale?” September 15, 2020, available at https://www.lexology.com/library/detail.aspx?g=3f68400b-2d73-43e2-88d5- 510c85ea6759.
10 TikTok, “About TikTok,” available at https://www.tiktok.com/about?lang=en.
11 Dexter Thomas, “‘Over Time the Trust Will Come’: An Exclusive Interview with TikTok’s CEO,” Wired, February 1, 2024.
12 Leadership and management position vacancies currently listed at ByteDance appear to be based in the company’s Beijing, Shanghai, and Hong Kong offices: https://jobs.ByteDance.com/en/position?location=CT_11. For broader profiles of the company’s operations in China, see Wei Sheng and Tony Xu, “A Tour of ByteDance Headquarters,” Technode, September 11, 2019; Jing Yang and Juro Osawa, “ByteDance’s China Business Is Slowing, Putting Spotlight on TikTok,” The Information, August 10, 2023.
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entrepreneurs.”13 In January 2024 testimony before the Senate Judiciary Committee, Shou stated that “ByteDance is a global company and not a Chinese company.”14
What is ByteDance’s relationship to the People’s Republic of China (PRC)?
ByteDance is a privately held company, and details on its global operations and ultimate shareholding structure are not widely available, beyond information published by ByteDance. Several experts and policymakers consider ByteDance to be ultimately subject to the jurisdiction of the PRC.15 In its official corporate structure, ByteDance currently lists all of its global subsidiaries and offices, including its original PRC-based firm Beijing ByteDance Technology Co. Ltd. (Beijing ByteDance), as subsidiaries of ByteDance in the Cayman Islands. In February 2023, ByteDance published an updated corporate structure in which it had renamed Beijing ByteDance as Beijing Douyin Information Services Co. Ltd. (Beijing Douyin).16
ByteDance uses a variable interest entity (VIE) structure.17 China prohibits foreign investors from investing in China’s internet and telecommunications companies (among other types of companies). To access international capital under these restrictions, firms in China’s technology sectors (including ByteDance) frequently use a VIE structure. This structure relies on an offshore holding company tied through a series of contracts to the PRC firm, which holds the core assets and conducts the firm’s global business. Overseas investors invest in the offshore entity, commonly a holding company incorporated in a jurisdiction such as the Cayman Islands or British Virgin Islands, and receive a share of the firm’s revenue without making any direct equity investment in the core assets of the business.
Is TikTok available in China?
Internet users in China are not able to easily access TikTok; they are able to access Douyin, TikTok’s predecessor-turned-companion application.18 Douyin is China’s most popular short-form video application, with a user interface and content recommendation algorithms similar to TikTok’s.19 U.S. and multinational digital platforms, including TikTok, are unable to operate
13 House of Representatives Committee on Energy and Commerce, TikTok: How Congress Can Safeguard American Data Privacy and Protect Children from Online Harms, Hearing, 118th Cong., 1st sess., March 23, 2023, p. 131, available at https://www.congress.gov/118/meeting/house/115519/documents/HHRG-118-IF00-Transcript- 20230323.pdf.
14 U.S. Senate Committee on the Judiciary, Big Tech and the Online Child Sexual Exploitation Crisis, Full Committee Hearing, January 31, 2024, available at https://www.judiciary.senate.gov/committee-activity/hearings/big-tech-and-the- online-child-sexual-exploitation-crisis.
15 Roger Chen and Rui Ma, “How ByteDance Became the World’s Most Valuable Startup,” Harvard Business Review, February 24, 2022; Yaqiu Wang, “The Problem with TikTok’s Claim of Independence from Beijing,” Human Rights Watch, March 24, 2023.
16 For a graphical representation of ByteDance’s corporate structure (as published by the company), see https://www.bytedance.com/en/.
17 For more details on the variable interest entity (VIE) structure, see CRS In Focus IF11803, U.S. Capital Markets and China: Issues for Congress, by Michael D. Sutherland and Karen M. Sutter; U.S. Securities and Exchange Commission, “Investor Bulletin: U.S.-Listed Companies Operating Chinese Businesses Through a VIE Structure,” September 20, 2021.
18 Zeyi Yang, “How China Takes Extreme Measures to Keep Teens Off TikTok,” MIT Technology Review, March 8, 2023.
19 Pallaeon Lin, “TikTok vs. Douyin: A Security and Privacy Analysis,” Citizen Lab, March 22, 2021.
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legally in China due to restrictions on foreign investment and operations in various technology sectors.20
National Security and Data Privacy Concerns
Is ByteDance a People’s Republic of China (PRC) company?
ByteDance executives have maintained that because ByteDance is incorporated in the Cayman Islands, it should not be considered a PRC company. However, PRC officials have referred to ByteDance as a PRC company and have cited the company’s obligations to comply with PRC data security and export control regulations as factors that may impede or block a ByteDance divestment from TikTok.21
Some experts contend that the PRC government controls ByteDance, or at least exerts a degree of influence over ByteDance, through a 2021 investment in Beijing Douyin Information Services Co. Ltd. (Beijing Douyin) (the entity that owns TikTok’s core technology) by WangTouZhongWen (Beijing) Technology.22 WangTouZhongWen financed its stake in Beijing Douyin with funding from the China Internet Investment Fund (CIIF), a PRC government-run investment fund capitalized by joint capital contributions from the Cyberspace Administration of China (CAC) and China’s Ministry of Finance.23 Through this investment, WangTouZhongWen— and the CIIF by extension—acquired a 1% stake in Beijing Douyin and a seat on the firm’s board.24 Some experts describe this 1% share as a “golden share,” a reference to the PRC government’s strategy of making small, targeted investments that, in the view of these experts, gives the PRC government visibility, influence, and control over the decisions and operations of certain strategic firms in China’s private sector.25 Following this acquisition in December 2021, CAC official Wu Shugang was appointed to Beijing Douyin’s board of directors.26
Does the government of the People’s Republic of China (PRC) exercise control over ByteDance?
The PRC government has tools that it may use to exert control over ByteDance (and potentially by extension TikTok) and other PRC digital platform developers. These tools may include, for example
• Communist Party of China (CPC) Party Organizations: Since 1993, the PRC government has required companies in China’s private sector that employ three
20 Beina Xu and Eleanor Albert, “Media Censorship in China,” Council on Foreign Relations, February 17, 2017; CRS In Focus IF12640, TikTok and China’s Digital Platforms: Issues for Congress, by Karen M. Sutter and Michael D. Sutherland.
21 Xinhua, “Planned TikTok Deal Entails China’s Approval Under Revised Catalogue: Expert,” August 30, 2020; China Global Television Network, “MOFCOM: China Will Firmly Oppose a Forced Sale of TikTok,” March 24, 2023; Meaghan Tobin, “China Condemns U.S. Proposal to Force the Sale of TikTok,” New York Times, March 13, 2024.
22 Keith Zhai, “China Steps Up Direct Involvement in Internet-Content Firms,” Wall Street Journal, August 17, 2021.
23 Zheping Huang, “Beijing Tightens Grip on ByteDance with Rare China Board Seat,” Bloomberg, August 17, 2021.
24 Juro Osawa and Shai Oster, “Beijing Tightens Grip on ByteDance by Quietly Taking Stake, China Board Seat,” The Information, August 16, 2021.
25 Ryan McMorrow, Qianer Liu, and Cheng Leng, “China Moves to Take ‘Golden Shares’ in Alibaba and Tencent Units,” Financial Times, January 12, 2023.
26 “Fretting About Data Security, China’s Government Expands Its Use of ‘Golden Shares,’” Reuters, December 16, 2021.
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or more Party members to establish internal Party organizations. Since becoming CPC General Secretary in 2013, Xi Jinping has taken action to expand the role and influence of Party organizations inside PRC firms,27 including in the selection of executives in larger PRC companies.28
• Official Content Guidelines and Censorship Rules: The PRC government maintains a robust online censorship regime that it uses to shape the content published to China’s social media platforms. Some observers have cited instances of content suppression and promotion that TikTok and ByteDance representatives later acknowledged.29
• Data Security, Export Controls, and Cybersecurity Regulations: The PRC government has applied existing cybersecurity and data security laws to influence corporate activity in China. PRC officials have indicated that they could apply China’s export control laws to block ByteDance from divesting TikTok, stating that social media algorithms developed by PRC firms fall under China’s export control regulations.30
What laws and regulations in China could influence ByteDance operations?
Since 2015, the People’s Republic of China (PRC) government and the Communist Party of China (CPC) have adopted interrelated laws, economic security measures, and data restrictions that enhance their control over data and commercial activity within and outside of China, which could influence ByteDance operations. They have expanded data localization requirements, placed data under export controls, and, since 2021, required security reviews for PRC firms listing or operating overseas. Some PRC provisions require firms to adhere to PRC requirements even when those requirements conflict with U.S. laws. Relevant laws in China include, for example
• The PRC National Security Law (2015) requires information systems in China to be “secure and controllable.” Since 2016, the PRC government has required U.S. technology firms to store data and cryptographic keys in China.31
27 Scott Livingston, “The New Challenge of Communist Corporate Governance,” Center for Strategic and International Studies, January 15, 2021.
28 “Chinese Communist Party Cells in Private Companies: Though Not Yet Universal, Increasingly Situated to Play Greater Roles in Corporate Governance,” Sayari, April 7, 2021.
29 In September 2019, a review of TikTok internal guidelines published by The Guardian revealed that TikTok had been suppressing the visibility of (and in some cases removing) content that could be seen as portraying LGBTQ+ individuals or their lifestyles positively, alongside content that was deemed politically sensitive to Beijing. TikTok later stated that it had also been suppressing the visibility of content that portrayed individuals that were overweight or displayed conspicuous disabilities, noting that elements of the policy were adopted to comply with broader ByteDance content moderation policies, and that those policies had been replaced with localized content moderation guidelines. In 2020, TikTok released an apology message for a “technical glitch” that made it “temporarily appear as if posts uploaded using #BlackLivesMatter and #GeorgeFloyd would receive 0 views.” See Alex Hern, “TikTok’s Local Moderation Guidelines Ban Pro-LGBT Content,” The Guardian, September 26, 2019; Umberto Bacchi, “TikTok Apologises for Censoring LGBT+ Content,” Reuters, September 22, 2020; Vanessa Pappas and Kudzi Chikumbu, “A Message to Our Black Community,” TikTok, June 1, 2020.
30 Rafaelle Huang, “China Signals Opposition to Forced Sale of TikTok in the U.S.,” Wall Street Journal, March 15, 2024.
31 National Security Law of the People’s Republic of China, July 1, 2015, English translation available at https://www.chinalawtranslate.com/en/2015nsl/#:~:text= Article%201%3A%20This%20Law%20is,of%20the%20reform%20and%20opening.
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• The PRC National Cybersecurity Law (2017) requires firms to store personal information and data within China, and it underpins requirements to place PRC data and related infrastructure in China.32
• The PRC Data Security Law (2021) covers data processing inside and outside of China if it “harms the national security, public interest, or the legitimate rights and interests of citizens or organizations of the PRC.” The law requires PRC government approval for the transfer of data stored in China and calls for classifying data according to its importance to China’s economic development and national security interests.33
• In August 2020, the PRC government added algorithms used in social media platforms to China’s Catalogue of Technologies Prohibited and Restricted from Export, which is regularly updated according to China’s Export Control Law (2020).34 The addition followed the Trump Administration’s announcement earlier in August 2020 of executive actions targeting PRC social media applications, including TikTok.35
Does ByteDance share user data with the government of the People’s Republic of China (PRC)?
TikTok has denied that it shares data with the PRC government or the Communist Party of China (CPC). In its responses to Questions for the Record following TikTok CEO Shou Zi Chew’s testimony in March 2023 before the House Energy and Commerce Committee, TikTok provided a response indicating that the company “has never shared, or received a request to share, U.S. user data with the Chinese government.”36 In response to Questions for the Record about ByteDance and its adherence to PRC government policies, TikTok provided a response indicating that “ByteDance’s products follow the local laws and regulations of the countries they operate in.”37 Neither TikTok nor ByteDance have issued a statement to date on whether ByteDance or any of its subsidiaries in China have received requests to share data from the PRC government. One former ByteDance executive reportedly has alleged that ByteDance did share certain user data with the company’s internal CPC committee.38
32 Cybersecurity Law of the People’s Republic of China, June 1, 2017, English translation available at https://digichina.stanford.edu/work/translation-cybersecurity-law-of-the-peoples-republic-of-china-effective-june-1- 2017/.
33 Data Security Law of the People’s Republic of China, September 1, 2021, English translation available at https://digichina.stanford.edu/work/translation-data-security-law-of-the-peoples-republic-of-china/.
34 Export Control Law of the People’s Republic of China, October 17, 2020, English translation available at https://www.chinalawtranslate.com/en/export-control/.
35 “Planned TikTok Deal Entails China’s Approval Under Revised Catalogue: Expert,” Xinhua, August 30, 2020.
36 TikTok, Additional Responses to Questions for the Record, May 4, 2023, p. 13, available at https://docs.house.gov/ meetings/IF/IF00/20230323/115519/HHRG-118-IF00-Wstate-ChewS-20230323-SD030.pdf.
37 Ibid.
38 In June 2023, a former ByteDance executive who was engaged in litigation against the company claimed that ByteDance’s internal CPC committee was granted access to data of users based in Hong Kong in 2018. The former executive claimed that this access was to facilitate efforts to pressure ByteDance internally to support the PRC government’s efforts at the time to crack down on Hong Kong’s pro-democracy movement. ByteDance denies the claim. Georgia Wells, “Former ByteDance Executive Claims Chinese Communist Party Accessed TikTok’s Hong Kong User Data,” Wall Street Journal, June 5, 2023.
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Where does TikTok store user data?
TikTok provided a response to Questions for the Record following CEO Shou Zi Chew’s March 2023 testimony before the House Energy and Commerce Committee indicating that at least seven years’ worth of U.S. users’ TikTok data—specifically data related to paid content creators—is stored in data centers located in China.39 As part of its efforts related to Project Texas (an initiative started by TikTok that it has claimed would address U.S. government security concerns), TikTok issued a statement indicating that it is “committed to storing all U.S. user data in the United States” in cooperation with Oracle and other U.S. firms. (See “What is Project Texas?”) TikTok also has issued statements claiming that, “as of July 2022, all new U.S. user data is stored automatically in Oracle’s U.S. cloud infrastructure, and access is managed exclusively by the TikTok US Data Security Team.”40 Some experts contend that whether and where TikTok stores data could potentially be unrelated to the Chinese government’s ability to access TikTok’s data— as reported in 2022, there appear to be incidences of ByteDance employees located in China remotely accessing U.S. TikTok user data from ByteDance offices in Beijing in support of Project Texas.41
The U.S.-based company Oracle currently provides cloud infrastructure for TikTok. According to TikTok, “100% of [U.S.] user traffic is being routed to Oracle Cloud Infrastructure” and U.S. and Singapore data centers are used as backup.42
What is Project Texas?
Formally announced by TikTok in January 2023, Project Texas is a program currently being implemented by TikTok to address what it claims are the key national security concerns expressed by the U.S. government during the company’s negotiations with the U.S. Department of Justice following the 2019 Committee on Foreign Investment in the United States (CFIUS) investigation (see “What actions followed the 2019 CFIUS investigation of the ByteDance acquisition of musical.ly?”).43 The Department of Justice and CFIUS have declined to comment on the U.S. government’s view of Project Texas, citing confidentiality obligations.
The core element of Project Texas, according to TikTok, is a localization of all data generated by U.S. users and monitoring of cross-border data flows by a team based in the United States. TikTok plans to do this through the establishment of a new subsidiary, TikTok U.S. Data Security (USDS), based in the United States, which would be monitored by Oracle. USDS would also manage the migration of all TikTok data traffic to Oracle Cloud, and, according to TikTok, would establish a dedicated “transparency center” to allow Oracle employees to inspect TikTok’s source code.44 As of August 2023, media reporting indicates that access to TikTok’s source code is a point of contention between Oracle and TikTok employees, and that TikTok is imposing access restrictions and surveillance requirements on Oracle employees that impedes their ability to
39 TikTok, Additional Responses to Questions for the Record, May 4, 2023, p. 13, available at https://docs.house.gov/ meetings/IF/IF00/20230323/115519/HHRG-118-IF00-Wstate-ChewS-20230323-SD030.pdf.
40 TikTok, “TikTok Facts: How We Secure Personal Information and Store Data,” press release, October 12, 2023.
41 Emily Baker-White, “Leaked Audio from 80 Internal TikTok Meetings Shows That US User Data Has Been Repeatedly Accessed from China,” Buzzfeed News, June 17, 2022.
42 Albert Calamug, “Delivering on Our US Data Governance,” TikTok, June 17, 2022, available at https://newsroom.tiktok.com/en-us/delivering-on-our-us-data-governance; TikTok, “The Truth About TikTok: Separating Fact from Fiction,” press release, April 17, 2023.
43 Matt Perault and Samm Sacks, “Project Texas: The Details of TikTok’s Plan to Remain Operational in the United States,” January 26, 2023.
44 TikTok, “When Will Project Texas Be Fully Operational?” press release, March 23, 2023.
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implement Project Texas.45 Several experts and Members of Congress contend that even if Project Texas were to be fully implemented, it would not address the core problem of ByteDance employee access to U.S. user data, which some experts argue could be maintained despite a localization of data in the United States depending on how ByteDance and TikTok structure internal data security protocols and access permissions.46
How does TikTok moderate content and recommend content?
TikTok has maintained that its content moderation policies and recommendation algorithms operate independently of ByteDance and its other products, and that TikTok tailors these policies and recommendation algorithms to be compliant with the laws of each country where it operates and also to promote content specific to each country where it operates.47 In its responses to Questions for the Record following TikTok CEO Shou Zi Chew’s March 2023 testimony before the House Energy and Commerce Committee, TikTok indicated that it promotes certain content but claimed that it does not do so at the request of any government.48 Some observers have cited instances of content suppression and promotion that TikTok and ByteDance representatives later acknowledged.49
Efforts to Regulate TikTok
What actions has the executive branch taken to address alleged national security risks TikTok poses?
With regard to ByteDance and TikTok, the executive branch has sought to address identified national security concerns related to the firms’ presence and operations in the United States using two separate authorities and legal frameworks: (1) CFIUS and (2) the International Emergency Economic Powers Act (IEEPA). These two actions are discussed in the questions that immediately follow.
What are the details of the CFIUS investigation of the ByteDance acquisition of musical.ly?
In 2019, CFIUS conducted a retroactive national security review and investigation of ByteDance’s completed acquisition of musical.ly, which had originally not been submitted by the parties for CFIUS review.50 Following its investigation, CFIUS referred the transaction to President Trump for a presidential decision. The presidential decision, issued in March 2020,
45 Emily Baker-White, “As TikTok Ban Looms, ByteDance Battles Oracle for Control of Its Algorithm,” Forbes, August 24, 2023; Anissa Gardizy, “TikTok Says U.S. Survival Plan Is Going Forward. Its Cloud Provider Isn’t So Sure,” The Information, May 22, 2023.
46 Matt Perault, “What Happened to TikTok’s Project Texas?” Lawfare, March 20, 2024.
47 TikTok, “The Truth About TikTok: Separating Fact from Fiction,” press release, April 17, 2023.
48 TikTok, Additional Responses to Questions for the Record, May 4, 2023.
49 See supra footnote 29.
50 The Committee on Foreign Investment in the United States (CFIUS) is an interagency committee chaired by the Secretary of the Treasury. It serves the President in overseeing the national security risks of certain foreign direct investment (FDI) in the U.S. economy. For more details, see CRS In Focus IF10177, Committee on Foreign Investment in the United States (CFIUS), by Cathleen D. Cimino-Isaacs and Karen M. Sutter.
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concluded that the acquisition threatened U.S. national security.51 In referring the case to the President, CFIUS signaled it could not mitigate the identified national security risks arising from the transaction. CFIUS does not publicly comment on investigations or mitigation negotiations, including with respect to TikTok.
What actions followed the 2019 CFIUS investigation of the ByteDance acquisition of musical.ly?
In August 2020, President Trump concluded that the ByteDance acquisition of musical.ly threatened U.S. national security and issued a Presidential Order under CFIUS’s authorities directing ByteDance to divest (1) any asset or property used to enable or support the operation of TikTok in the United States and (2) data obtained or derived from TikTok or musical.ly app users in the United States.52 In a statement issued following the order, then-Treasury Secretary Steven Mnuchin said that “CFIUS conducted an exhaustive review of the case and unanimously recommended this action to the President in order to protect U.S. users from exploitation of their personal data.”53
In November 2020, ByteDance and TikTok contested the order through a legal challenge, arguing, among other things, that the order was an unconstitutional taking of their private property without just compensation and that it violated their due process rights under the Fifth Amendment.54 The case is currently held in abeyance at the request of both parties. The court directed the government to file status reports every 60 days, and the government has reported as directed. According to the December 2024 report, the parties believed abeyance was appropriate while the U.S. Supreme Court reviewed TikTok’s challenge to PAFACAA.55 The Supreme Court resolved that appeal on January 17, 2025.56 The parties’ next status report is due February 14, 2025, but they could file one earlier if they decide an update is warranted.
What actions did the U.S. government take under IEEPA authorities?
IEEPA gives the President broad authority to block a variety of economic transactions following the declaration of a national emergency.57 Based on the national emergency declared in Executive Order (E.O.) 13873 in May 2019, in August 2020 President Trump issued E.O. 13942, which exercised authority provided by IEEPA to restrict TikTok’s U.S. operations.58 The then-Secretary
51 White House Office of the Press Secretary, “Regarding the Acquisition of Musical.ly by ByteDance, Ltd.,” August 14, 2020, available at https://home.treasury.gov/system/files/136/EO-on-TikTok-8-14-20.pdf.
52 Executive Office of the President, “Regarding the Acquisition of Musical.ly by ByteDance Ltd.,” 85 Federal Register 51297, August 14, 2020.
53 U.S. Department of the Treasury, “Statement by Secretary Steven T. Mnuchin on the President’s Decision Regarding the Acquisition by ByteDance Ltd. of the U.S. Business of musical.ly,” August 14, 2020.
54 Petition for Review, TikTok v. CFIUS, No. 20-1444 (D.C. Cir. Nov. 10, 2020).
55 Status Report, TikTok v. CFIUS, No. 20-1444 (D.C. Cir. Dec. 16, 2024).
56 TikTok Inc. v. Garland, Nos. 24-656 and 24-657, slip op., at 1 (U.S. Jan. 17, 2025) (per curiam); see also infra “Has PAFACAA been challenged in court, and could it be challenged again?”
57 International Emergency Economic Powers Act (IEEPA), P.L. 95-223, 91 Stat. 1626 (1977) (codified as amended at 50 U.S.C. §§1701-1708); see 50 U.S.C. §1702(a) (granting the President authority to prohibit certain transactions). For further background on the President’s powers under IEEPA, see CRS Report R45618, The International Emergency Economic Powers Act: Origins, Evolution, and Use, coordinated by Christopher A. Casey.
58 Executive Order 13942, “Addressing the Threat Posed by TikTok, and Taking Additional Steps to Address the (continued...)
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of Commerce subsequently implemented this order by issuing a list of prohibited transactions, including maintaining TikTok on a mobile app store or providing internet hosting services to it.59
Have the actions the U.S. government took under IEEPA authorities been challenged in court?
Two lawsuits were filed challenging E.O. 13942: one brought by TikTok and its parent company ByteDance,60 and the other brought by a group of TikTok users.61 The plaintiffs in these suits argued, among other things, that the President exceeded his authority under IEEPA by regulating conduct that they contended falls under two statutory exceptions.62 First, under the personal communication exception, the President may not rely on IEEPA to regulate or prohibit any “personal communication, which does not involve a transfer of anything of value.”63 Second, under the informational materials exception, the President may not rely on IEEPA to regulate or prohibit the importation or exportation of most “informational materials.”64 The plaintiffs argued that TikTok’s core function—creating and sharing short-form videos—involved transmitting personal communications and informational materials, albeit in a modern format.65
In both suits, the courts issued preliminary injunctions temporarily barring the United States from enforcing the restrictions.66 In June 2021, before the injunctions expired, the Biden Administration rescinded E.O. 13942 and replaced it with a broader E.O. 14034. E.O. 14034 directs the Secretary of Commerce to create a program to identify and address the potential national security risks arising from foreign internet-based and software-tied operations in the United States. These could include apps that are operated by entities owned by, controlled by, or subject to the jurisdiction of the People’s Republic of China (PRC) or other countries the Secretary of Commerce has designated as “foreign adversaries.”67
National Emergency with Respect to the Information and Communications Technology and Services Supply Chain,” 85 Federal Register 48637, August 11, 2020.
59 Department of Commerce, “Identification of Prohibited Transactions to Implement Executive Order 13942 and Address the Threat Posed by TikTok and the National Emergency with Respect to the Information and Communications Technology and Services Supply Chain,” 85 Federal Register 60061, September 24, 2020.
60 Complaint, TikTok v. Trump, 1:20-cv-02658 (D.D.C. Sept. 18, 2020) [hereinafter TikTok Complaint].
61 Amended Complaint, Marland v. Trump, 2:20-cv-04597 (E.D. Pa. Oct. 1, 2020) [hereinafter TikTok Users Complaint].
62 See TikTok Complaint, supra footnote 60, at ¶¶ 75-81; TikTok Users Complaint, supra footnote 61, at ¶¶ 73-79.
63 50 U.S.C. §1702(b)(1).
64 Ibid. §1702(b)(2).
65 See Memorandum In Support of Plaintiff’s Motion for Preliminary Injunction, TikTok v. Trump, 1:20-cv-02658, at 18-20 (September 23, 2020); Memorandum of Law In Support of Plaintiffs’ Motion for Preliminary Injunction, Marland v. Trump, 2:20-cv-04597, at 21-22 (October 13, 2020).
66 In the case brought by TikTok and ByteDance, the court concluded that the plaintiffs were likely to prevail on the argument that the ban ran afoul of both relevant exceptions. TikTok v. Trump, 507 F. Supp. 3d 92, 107-109, 112 (D.D.C. 2020). In the TikTok users’ case, the court limited its decision to the informational materials exception. Marland v. Trump, 498 F. Supp. 3d 624, 636-641 (E.D. Pa. 2020).
67 Executive Order 14034, “Protecting Americans’ Sensitive Data from Foreign Adversaries,” 86 Federal Register 31423, June 9, 2021.
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What legislation has Congress introduced or enacted to regulate TikTok?
In 2022, Congress enacted a law directing the Office of Management and Budget (OMB) to develop standards and guidelines that require executive agencies to remove TikTok from government computers and other government information technology.68 On February 27, 2023, OMB issued implementation guidance, which included instructions and deadlines for removing TikTok from federal devices.69
In April 2024, Congress enacted PAFACAA (P.L. 118-50),70 which expressly names TikTok as a “foreign adversary controlled application” subject to its provisions.71 The act defines foreign adversary controlled application to include two categories, the first of which is applications operated by TikTok, ByteDance, or a subsidiary or successor of either company that is controlled by a foreign adversary.72 PAFACAA prohibits app stores and internet hosting services from supporting TikTok and other foreign adversary controlled applications in the United States unless their owners execute a “qualified divestiture” within a specified time frame.73
Prior to the passage of PAFACAA, Members of Congress introduced a number of other bills in the 118th Congress that would also regulate TikTok. Some of these bills proposed broader changes or different restrictions than those enacted in PAFACAA. Some bills would limit the application of the IEEPA exceptions when the President invokes IEEPA to regulate TikTok.74 For example, the No TikTok on United States Devices Act would direct the President to exercise his authority under IEEPA to prohibit transactions involving ByteDance’s property and would provide that the exceptions to IEEPA—which courts relied on to preliminarily enjoin an earlier exercise of IEEPA authority to regulate TikTok75—would not apply to the exercise of the President’s authority pursuant to the bill.76
Other legislative proposals would create new administrative authorities that could be used to regulate TikTok. An example is the SAFETY on Social Media Act of 2023.77 That bill would direct the President to publish a list of “untrustworthy applications and social media entities”78 and would direct the Federal Communications Commission to issue rules that prohibit app stores and internet service providers from supporting the listed applications.79 Proposals to expand data
68 Consolidated Appropriations Act, 2023, P.L. 117-328, Div. R, 136 Stat. 4459, 5258 (December 29, 2022); see also 40 U.S.C. §11101(6) (defining “information technology”).
69 OMB, memorandum from Shalanda D. Young, Director of OMB, “‘No TikTok on Government Devices’ Implementation Guidance,” M-23-13, February 27, 2023.
70 Protecting Americans from Foreign Adversary Controlled Applications Act (P.L. 118-50, Div. H) (hereinafter PAFACAA).
71 PAFACAA §2(g)(3)(A).
72 PAFACAA §2(g)(3).
73 PAFACAA §2(a).
74 Courts have cited IEEPA’s exceptions when enjoining executive orders that were issued under IEEPA and that would have applied to TikTok. See supra “What actions did the U.S. government take under IEEPA authorities?”
75 See supra footnote 66, and “What actions did the U.S. government take under IEEPA authorities?”
76 H.R. 503, 118th Cong. (2023); S. 85, 118th Cong. (2023).
77 S. 872, 118th Cong. (2023).
78 Section 3 of S. 872.
79 Section 5 of S. 872.
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privacy frameworks or to create new restrictions on cross-border transfers of data could also regulate TikTok’s—as well as other entities’—collection, use, and transfer of data.80
What are the main elements of PAFACAA?
PAFACAA regulates “foreign adversary controlled applications” and the app stores and internet hosting services through which users access the applications.81 The act’s definition of foreign adversary controlled application includes two categories of applications. First, applications operated by TikTok, ByteDance, or a subsidiary or successor of either company that is controlled by a foreign adversary qualify as foreign adversary controlled applications.82 In addition to TikTok and applications operated by TikTok’s parent company, ByteDance, this definition captures applications operated by Beijing Douyin Information Services Co. Ltd., ByteDance’s core operating subsidiary in China in which the Chinese government holds an equity stake. Second, the President may designate an application as a “foreign adversary controlled” application if
1. the application allows users to share and view text, images, videos, or similar
content; has more than 1,000,000 MAUs; and meets related definitional requirements;83
2. the application is operated by a person domiciled in, headquartered in,
maintaining a principal place of business in, or organized under the laws of a “foreign adversary country,” defined to include the countries listed in 10 U.S.C. §4872(d)(2), or the application is operated by a company for which persons owning at least a 20% stake are domiciled in, are headquartered in, maintain a principal place of business in, or are organized under the laws of a foreign adversary country;84 and
3. the President determines that the application presents a significant national
security threat.85
PAFACAA prohibits app stores and internet hosting services from enabling the distribution, maintenance, or updating of a foreign adversary controlled application for U.S. users if the application’s owners do not execute a qualified divestiture within 270 days of the application being designated a foreign adversary controlled application. The act defines qualified divestiture as a divestiture or similar transaction for which the President, through an interagency process, has determined that the application will no longer be controlled by a foreign adversary and will no longer have any operational relationship with entities controlled by a foreign adversary.86 The President can provide a one-time extension of the divestiture deadline of up to 90 days when a path to a qualified divestiture has been identified, there is evidence of “significant” progress
80 See, for example, H.R. 7520, 118th Cong. (2024); S. 1974, 118th Cong. (2023). For more information about legislative proposals to regulate TikTok, see CRS Legal Sidebar LSB10942, Restricting TikTok (Part II): Legislative Proposals and Considerations for Congress, coordinated by Peter J. Benson.
81 PAFACAA §2.
82 PAFACAA §2(g)(3).
83 If the “primary purpose” of an application “is to allow users to post product reviews, business reviews, or travel information and reviews,” it does not meet the definitional requirements. PAFACAA §2(g)(2)(B).
84 PAFACAA §2(g)(1).
85 PAFACAA §2(g)(3)(B).
86 PAFACAA §2(g)(6).
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toward executing the divestiture, and there are legally binding agreements in place to enable the divestiture.87
For applications operated by TikTok or other subsidiaries of ByteDance, the 270-day period runs from the date of the act’s enactment.88 If the President determines that another application qualifies as a foreign adversary controlled application, the period runs from the applicable presidential determination.89
If a qualified divestiture is executed within this 270-day—or, if extended, up to 360-day—time period, app stores and internet hosting services would be permitted to continue distributing, maintaining, and updating the application at issue without interruption.90 Regardless of when a qualified divestiture takes place, the act’s restrictions cease to apply once a qualified divestiture has been completed.91
Before the ban on app stores and internet hosting services supporting the application takes effect, the owner of a “foreign adversary controlled” application is required to provide U.S. users, upon request, with all data related to their accounts, including posts, photos, and videos, in a machine readable format.92
Who can be penalized under PAFACAA, and what penalties can be imposed?
PAFACAA provides for civil penalties in two circumstances.93 First, an entity that violates the act by providing a marketplace or internet hosting service that enables distribution, maintenance, or updates of a foreign adversary controlled application could be subject to civil penalties of up to $5,000 multiplied by the number of U.S. users who accessed, maintained, or updated the application.94 Second, an entity that owns or controls a foreign adversary controlled application and violates the act by failing to provide machine readable user data in response to requests from U.S. users could be subject to civil penalties of up to $500 multiplied by the number of affected users.95
Does PAFACAA force any ByteDance or TikTok owners to divest from either company?
PAFACAA does not directly force ByteDance or TikTok owners to divest from either company. If ByteDance and TikTok owners were to elect not to execute a qualified divestiture, that election, in and of itself, would not constitute a violation of any provision in the act. Nor would the
87 PAFACAA §2(a)(3).
88 PAFACAA §2(a)(2)(A).
89 PAFACAA §2(a)(2)(B).
90 PAFACAA §2(c)(1)(A).
91 PAFACAA §2(c)(1)(B).
92 PAFACAA §2(b). For more information about some of the provisions included in PAFACAA, see CRS Legal Sidebar LSB10942, Restricting TikTok (Part II): Legislative Proposals and Considerations for Congress, coordinated by Peter J. Benson; and CRS Legal Sidebar LSB11127, Regulation of TikTok Under the Protecting Americans from Foreign Adversary Controlled Applications Act: Analysis of Selected Legal Issues, by Peter J. Benson, Valerie C. Brannon, and Joanna R. Lampe.
93 PAFACAA §2(d)(1).
94 PAFACAA §§2(a), 2(d)(1)(A).
95 PAFACAA §§2(b), 2(d)(1)(B).
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election alone subject any party to the civil penalties provided in the act. Under PAFACAA, the primary consequence of a decision not to divest would be a prohibition on app stores and internet hosting services enabling access to TikTok in the United States, as opposed to an affirmative requirement to divest under penalty of legal liability.
The combination of an election not to divest with additional conduct could subject ByteDance, TikTok, or other entities to civil penalties. If ByteDance and TikTok owners were to elect not to execute a qualified divestiture, and TikTok were to fail to comply with requests for U.S. user data in the manner required by the act during the first 270 days96 after enactment, TikTok could be subject to civil penalties.97 After the 270-day period ends, an entity that provides a marketplace for or internet hosting service that enables distribution, maintenance, or updates of TikTok for U.S. users could be subject to civil penalties.98 However, if TikTok were to comply with all user data requests in the manner required by the act, and if all app stores and internet hosting services serving U.S. users were to stop supporting TikTok, no party would be subject to the act’s civil penalties simply because of the lack of divestiture.99
Has PAFACAA been challenged in court, and could it be challenged again?
On May 7, 2024, TikTok and ByteDance filed a petition for review in the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) to challenge the constitutionality of PAFACAA.100 The companies’ petition was a pre-enforcement challenge, one of the three possible routes for an entity to raise a legal challenge to the act. TikTok and ByteDance’s challenge has been rejected by the D.C. Circuit and the U.S. Supreme Court, as discussed below, but other entities allegedly injured by the act could bring new challenges in the future in one of three ways.
First, although the act does not clearly specify the extent to which it authorizes the Attorney General to enforce the act through administrative proceedings, an entity that was subject to such administrative proceedings could file a petition for review of the agency action in the D.C. Circuit.101 Second, if the Attorney General were to bring suit against a person or entity for violating the act, the defendant might raise a constitutional claim as a defense to liability (which is sometimes called a defensive challenge).102 The act provides that the Attorney General “shall conduct investigations related to potential violations,” “shall pursue enforcement” when the investigation “results in a determination that a violation has occurred,” and “may bring an action in an appropriate” federal “district court” to obtain relief.103 Third, regulated entities or others
96 The President may extend this period for up to 90 days if a path to a qualified divestiture has been identified, there is evidence of “significant” progress toward executing the divestiture, and there are legally binding agreements in place to enable the divestiture. PAFACAA §2(a)(3).
97 PAFACAA §§2(b), 2(d)(1)(B).
98 PAFACAA §§2(a), 2(d)(1)(A). Additionally, the President may provide a one-time extension of up to 90 days when certain conditions are met. PAFACAA §2(a)(3).
99 PAFACAA §2(d)(1).
100 Petition for Review, TikTok Inc. v. Garland, No. 24-1113 (D.C. Cir. May 7, 2024).
101 See PAFACAA §3(a). As discussed in a CRS Legal Sidebar, it is not clear whether and to what extent PAFACAA authorizes administrative enforcement or other agency actions apart from civil suits. For more information, see CRS Legal Sidebar LSB11127, Regulation of TikTok Under the Protecting Americans from Foreign Adversary Controlled Applications Act: Analysis of Selected Legal Issues, by Peter J. Benson, Valerie C. Brannon, and Joanna R. Lampe.
102 See, for example, Howard M. Wasserman, “Precedent, Non-Universal Injunctions, and Judicial Departmentalism: A Model of Constitutional Adjudication,” Lewis & Clark Law Review (2020), vol. 23, no. 4, pp. 1077-1147.
103 PAFACAA §2(d)(2).
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alleging harm under the act could sue to prevent enforcement of the act, which might take the form of a pre-enforcement challenge (sometimes called an offensive challenge) to the act seeking to bar the Attorney General from enforcing it.104 Parties seeking to bring pre-enforcement challenges would need to demonstrate standing to sue, including showing that they faced actual or imminent harm if the act were enforced.105 PAFACAA provides that the D.C. Circuit “shall have exclusive jurisdiction over any challenge to this division [of P.L. 118-50] or any action, finding, or determination under this division.”106
As mentioned above, the D.C. Circuit and Supreme Court already rejected one constitutional challenge brought under this last mechanism. In a petition for review, TikTok and ByteDance claimed that the act violates the First Amendment’s Free Speech Clause, Article I’s Bill of Attainder Clause, the Fifth Amendment’s Takings Clause, and the equal protection component of the Fifth Amendment’s Due Process Clause.107 The companies asked the court to enjoin the Attorney General from enforcing the act.108 Users and an organization that create content on TikTok filed their own petitions,109 also raising First Amendment challenges, and the D.C. Circuit consolidated the petitions.110
On December 6, 2024, the D.C. Circuit denied all of the petitions for review.111 The petitioners asked the Supreme Court to review the D.C. Circuit’s decision, and the Supreme Court agreed to hear the First Amendment challenges.112 On January 17, 2025, the Supreme Court affirmed the D.C. Circuit, ruling that, as applied to the petitioners, the challenged provisions from the act do not violate the petitioners’ First Amendment rights.113 The details of this Supreme Court ruling are discussed below.114 The act’s prohibitions against distributing, maintaining, or updating TikTok
104 See, for example, Howard M. Wasserman, “Precedent, Non-Universal Injunctions, and Judicial Departmentalism: A Model of Constitutional Adjudication,” Lewis & Clark Law Review (2020), vol. 23, no. 4, p. 1086.
105 See CRS, Overview of Standing, Constitution Annotated, available at https://constitution.congress.gov/browse/ essay/artIII-S2-C1-6-1/ALDE_00012992/ (last visited March 22, 2024); CRS, Actual or Imminent Injury, Constitution Annotated, available at https://constitution.congress.gov/browse/essay/artIII-S2-C1-6-4-4/ALDE_00012999/ (last visited March 22, 2024).
106 PAFACAA §3(b). For additional analysis of the act’s judicial review provisions, see CRS Legal Sidebar LSB11127, Regulation of TikTok Under the Protecting Americans from Foreign Adversary Controlled Applications Act: Analysis of Selected Legal Issues, by Peter J. Benson, Valerie C. Brannon, and Joanna R. Lampe.
107 Ibid. For more information about the First Amendment, the Bill of Attainder Clause, and the Takings Clause, see “What First Amendment considerations arise from government restriction of social media applications?”; “How might the Bill of Attainder Clause apply to legislation that names TikTok?”; and “What Takings Clause considerations might be raised by legislation that regulates TikTok?”
108 Petition for Review at 65, TikTok Inc. v. Garland, No. 24-1113 (D.C. Cir. May 7, 2024).
109 Petition for Review, Firebaugh v. Garland, No. 24-1130 (D.C. Cir. May 14, 2024); Petition for Review, BASED Politics Inc. v. Garland, No. 24- 24-1183 (D.C. Cir. June 6, 2024).
110 TikTok Inc. v. Garland, 122 F.4th 930, 940 (D.C. Cir. 2024).
111 Ibid. For additional analysis of the D.C. Circuit’s decision, see CRS Legal Sidebar LSB11252, TikTok v. Garland: Constitutional Challenges to the Protecting Americans from Foreign Adversary Controlled Applications Act, by Peter J. Benson, Valerie C. Brannon, and Joanna R. Lampe.
112 TikTok Inc. v. Garland, Nos. 24-656 and 24-657, slip op., at 1 (U.S. Jan. 17, 2025) (per curiam).
113 Ibid. at 11, 20.
114 Infra “What First Amendment considerations arise from government restriction of social media applications?”
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took effect on January 19, 2025.115 On January 20, 2025, President Trump ordered “the Attorney General not to take any action on behalf of the United States to enforce the Act for 75 days.”116
What actions have been taken at the state level to regulate TikTok?
A number of states117 have prohibited the installation or use of TikTok on state-owned devices through executive actions,118 legislative enactments,119 or both.120 Some states have also adopted broader bans on installing applications or communication technologies provided by entities based in the People’s Republic of China (PRC) on state-owned devices.121
In May 2023, Montana enacted a law, Senate Bill (SB) 419, that would prohibit TikTok from “operat[ing] within the territorial jurisdiction of Montana.”122 SB 419 provides that its effective date is January 1, 2024,123 but on November 30, 2023, a federal court preliminarily enjoined that effective date.124 As of March 2024, the court’s injunction remains in effect pending a final determination in the case. The Attorney General of Montana has appealed the preliminary injunction to the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit).125
If SB 419 were to take effect, TikTok and mobile app stores could be fined each time a user in Montana accesses TikTok or is offered the ability to access or download TikTok.126 The law would become “void” if TikTok were sold to a company that was not, at the time of the sale, incorporated in a country “designated as a foreign adversary in 15 C.F.R. [§]7.4.”127
115 PAFACAA §2(a)(2)(A); TikTok Inc. v. Garland, Nos. 24-656 and 24-657, slip op., at 1 (U.S. Jan. 17, 2025) (per curiam).
116 Executive Order 14166, “Application of Protecting Americans from Foreign Adversary Controlled Applications Act to Tiktok,” 90 Federal Register 8611, January 20, 2025.
117 See Cailey Gleeson, “These 39 States Already Ban TikTok from Government Devices,” Forbes, March 12, 2024, available at https://www.forbes.com/sites/caileygleeson/2024/03/12/these-39-states-already-ban-tiktok-from- government-devices/?sh=342082366705; see also Andrew Adams, “Updated: Where Is TikTok Banned? Tracking State by State,” Government Technology, December 14, 2022, available at https://www.govtech.com/biz/data/where-is- tiktok-banned-tracking-the-action-state-by-state.
118 See, for example, State of Arizona, Executive Order 2023-10, April 4, 2023, available at https://azgovernor.gov/ sites/default/files/eo_2023-10_protecting_the_states_cybersecurity_interests.pdf; Shawn Nailor, Secretary, Vermont Agency of Digital Service and State CIO, Memorandum: Cybersecurity Standard Update 2023-01 (February 16, 2023), available at https://digitalservices.vermont.gov/sites/digitalservices/files/doc_library/ Cybersecurity_Standard_Update_2023-01.pdf.
119 House Bill 3127, 82nd Oregon Legislative Assembly (2023), available at https://olis.oregonlegislature.gov/liz/ 2023R1/Downloads/MeasureDocument/HB3127/Enrolled.
120 See Coalition for Independent Technology Research v. Abbott, No. 1:23-cv-783, 2023 WL 8582597, at *1 (W.D. Tex. Dec. 11, 2023).
121 See Senate Bill (SB) 258, Florida Legislature (2023), available at https://www.flsenate.gov/Session/Bill/2023/258/ BillText/er/PDF; State of South Dakota Office of the Governor, Executive Order 2023-02, January 20, 2023, available at https://governor.sd.gov/doc/EO%202023-02.pdf.
122 SB 419 §1, 68th Montana Legislature (2023), available at https://leg.mt.gov/bills/2023/billpdf/SB0419.pdf.
123 Ibid. §5.
124 Alario v. Knudsen, Nos. CV 23-56-M-DWM & CV 23-61-M-DWM, 2023 WL 8270811, at *18 (D. Mont. Nov. 30, 2023), appeal filed, No. 24-34 (9th Cir. Jan. 3, 2024).
125 See Notice of Preliminary Injunction Appeal, TikTok v. Knudsen, No. 9:23-cv-61 (D. Mont. Jan. 2, 2024). For more information, see CRS Legal Sidebar LSB11166, Montana’s TikTok Ban Goes Before the Ninth Circuit, by Sanchitha Jayaram.
126 SB 419 §1, 68th Montana Legislature (2023), available at https://leg.mt.gov/bills/2023/billpdf/SB0419.pdf.
127 Ibid. §4. For more information about Montana’s SB 419, see CRS Legal Sidebar LSB10972, Montana’s TikTok Ban, an Injunction, and Pending Legal Actions, by Sanchitha Jayaram and Madeline W. Donley.
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Have TikTok or other entities challenged any state actions to regulate TikTok in court?
TikTok and a group of TikTok users each challenged SB 419, Montana’s ban on TikTok operating within the state.128 The challengers asked a federal district court to invalidate and enjoin SB 419 on multiple grounds. They argued that the law was preempted by several federal statutes, that it regulated aspects of national security and foreign affairs that are reserved to the federal government, and that it violated the Constitution’s First Amendment, the Commerce Clause, the Bill of Attainder Clause, and the Fourteenth Amendment’s Due Process Clause.129 The court, finding that TikTok and its users were likely to succeed on some of these arguments, granted a request to preliminarily enjoin the law from taking effect while the litigation proceeds.130 In the court’s view, SB 419 likely violates the First Amendment131 and the Commerce Clause,132 and it is likely preempted under the foreign affairs field preemption doctrine133 and by Section 721 of the Defense Production Act.134 The Attorney General of Montana has appealed the ruling to the Ninth Circuit.135
In addition, an organization of academics, journalists, researchers, and scientists filed a lawsuit challenging Texas’s prohibition against using TikTok on government-issued devices.136 The organization argued that the ban, as applied to faculty at public universities, violated its members’ First Amendment rights.137 In this case, the court disagreed with the challengers’ arguments. The court held that, because Texas’s ban reaches only “state-owned and -managed devices,” the regulation was subject to a lower level of First Amendment scrutiny, which it satisfied.138 The court dismissed the case.139
128 Alario, 2023 WL 8270811, at *18.
129 Complaint ¶¶85-138, TikTok v. Knudsen, No. 9:23-cv-61 (D. Mont. May 22, 2023).
130 Alario, 2023 WL 8270811, at *18.
131 Alario, 2023 WL 8270811, at *12.
132 Ibid. at *17.
133 For more information about the doctrine of foreign affairs preemption, see CRS Legal Sidebar WSLG1836, Constitutional Limits on States’ Efforts to “Uphold” the Paris Agreement, by Steve P. Mulligan.
134 Alario, 2023 WL 8270811, at *15. Section 721 of the Defense Production Act is codified at 50 U.S.C. §4565.
135 See Notice of Preliminary Injunction Appeal, TikTok v. Knudsen, No. 9:23-cv-61 (D. Mont. Jan. 2, 2024). For more information about the appeal, see CRS Legal Sidebar LSB11166, Montana’s TikTok Ban Goes Before the Ninth Circuit, by Sanchitha Jayaram. For more information about the federal district court’s preliminary injunction of Montana’s law, see CRS Legal Sidebar LSB10972, Montana’s TikTok Ban, an Injunction, and Pending Legal Actions, by Sanchitha Jayaram and Madeline W. Donley.
136 Coalition for Independent Technology Research v. Abbott, No. 1:23-cv-783, 2023 WL 8582597, at *1-2 (W.D. Tex. Dec. 11, 2023).
137 Ibid. at *2.
138 Ibid. at *7-9. The court held that Texas’s ban was a “a restriction on a nonpublic forum.” Ibid. at *7. For more information about the First Amendment standards applicable in public and nonpublic forums, see CRS Legal Sidebar LSB10383, Religious Speech and Advertising: Current Circuit Split and its Implications for Congress, by Whitney K. Novak, and CRS Legal Sidebar LSB10151, From Clamor to Calm: Restrictions on Speech at Polling Places, by Valerie C. Brannon.
139 Coalition for Independent Technology Research, 2023 WL 8582597, at *9. The following sections of this report address the First Amendment and other constitutional considerations that could potentially be raised by regulations of TikTok: “What First Amendment considerations arise from government restriction of social media applications?”; “How might the Bill of Attainder Clause apply to legislation that names TikTok?”; “What Takings Clause considerations might be raised by legislation that regulates TikTok?” and “What Due Process considerations might be raised by government regulation of TikTok?” For more information about legal considerations potentially raised by (continued...)
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Are foreign governments regulating TikTok?
The European Union (EU) has undertaken regulation of TikTok as part of its effort to regulate the digital economy, and some countries have restricted, blocked, or banned the app. Countries have banned TikTok on government devices (e.g., Australia, Canada, the United Kingdom) or temporarily blocked or banned TikTok due to concerns about content (e.g., Indonesia) or during times of political unrest (e.g., Pakistan).140 Some countries have banned the app outright, including India, which banned TikTok in 2020 and currently has a ban on 509 apps developed in China.141 Nepal, Afghanistan, and Somalia have also banned TikTok due to concerns about the content being posted on the platform.142
Potential Implications of a Ban or Divestiture of TikTok
How might a divestiture of TikTok work?
Some options ByteDance might consider if it chooses to divest TikTok could include the following:
• Some of the investors of ByteDance might create a new company to operate TikTok.143
• ByteDance might sell TikTok to a third party, such as a group of investors or a company.
The People’s Republic of China (PRC) government might not allow either of these options to occur.144 Under PAFACAA, these two options would need to meet the requirements of a “qualified divestiture,” which requires that the app not be controlled by, and have no operational relationship with, a foreign adversary, as determined by the President through an interagency process.145
Are there potential buyers for TikTok if it were for sale?
The parties interested in purchasing TikTok would likely depend on the sales price and the components of TikTok that would be included in the sale. ByteDance might seek to sell TikTok
regulations of TikTok, see CRS Legal Sidebar LSB10942, Restricting TikTok (Part II): Legislative Proposals and Considerations for Congress, coordinated by Peter J. Benson; and CRS Legal Sidebar LSB11127, Regulation of TikTok Under the Protecting Americans from Foreign Adversary Controlled Applications Act: Analysis of Selected Legal Issues, by Peter J. Benson, Valerie C. Brannon, and Joanna R. Lampe.
140 Jennifer Hassan et al., “The U.S. Could Ban TikTok. These Countries Have Blocked or Restricted It,” Washington Post, March 13, 2024.
141 Reuters, “India Adds 54 More Chinese Apps to Ban List; Sea Says It Complies with Laws,” February 15, 2022.
142 Ibid; Alex Travelli and Suhasini Raj, “What Happened When India Pulled the Plug on TikTok,” New York Times, March 22, 2024; Bashir Mohamed Caato, “Outcry in Somalia over Government Decision to Ban TikTok,” Al Jazeera, August 26, 2023; “Afghanistan: Taliban Orders TikTok, PUBG Ban for ‘Misleading’ Youths,” BBC, April 22, 2022; “Nepal Bans TikTok and Says It Disrupts Social Harmony,” Associated Press, November 13, 2023.
143 For more information on investors of ByteDance, see “Who owns ByteDance, and where is it located?”
144 For more information on PRC’s response to a potential sale of TikTok, see “Does the government of the People’s Republic of China (PRC) exercise control over ByteDance?”
145 For more information on the requirements of PAFACAA, see “What are the main elements of PAFACAA?”
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for billions of dollars, which would likely limit the potential buyers. TikTok has a large number of U.S. users and has been expanding the services offered to U.S. users on the app.146 The amount a buyer is willing to pay might be lower if, for example, the sale of TikTok does not include its algorithms or the data it has collected on its U.S. and other users. Although ByteDance was reportedly valued at $300 billion in November 2024,147 the current value of the U.S. portion of TikTok is unknown; some investors reportedly estimate that TikTok has been operating at a loss.148
Other factors might also limit the potential buyers of TikTok. For example, proposals to purchase TikTok from large technology companies—such as Apple, Google, and Meta—might raise antitrust concerns. News articles have mentioned several individuals and companies as potential purchasers of TikTok.149
On February 3, 2025, President Trump signed E.O. 14196 directing the Secretary of the Treasury and Secretary of Commerce, in close coordination with the Assistant to the President for Economic Policy, to submit to the President a plan within 90 days for the establishment of a sovereign wealth fund.150 President Trump reportedly stated that the sovereign wealth fund might be able to purchase TikTok.151 Some commentators have reportedly questioned where the funding for the sovereign wealth fund would come from and whether Congress would need to authorize the funding.152
How would a prohibition on entities facilitating the provision or the sale of TikTok affect other social media platforms?
If entities were prohibited from facilitating the provision of TikTok to U.S. users, some U.S. users might start to use or spend more time on other social media platforms. In particular, U.S. users might increase use of social media platforms that offer short-form videos similar to TikTok, such
146 For example, TikTok Shop in the United States started in September 2023 (see TikTok, “Introducing TikTok Shop,” September 12, 2023, available at https://newsroom.tiktok.com/en-us/introducing-tiktok-shop). For more information on the number of U.S. TikTok users, see “How many users does TikTok claim to currently have?”
147 Echo Wang and Chandni Shah, “TikTok Parent ByteDance’s Valuation Hits $300 Billion, Sources Say,” Reuters, November 16, 2024, available at https://www.reuters.com/technology/tiktok-parent-bytedances-valuation-hits-300- billion-amid-us-ban-uncertainty-wsj-2024-11-16/.
148 Jing Yang, Kate Clark, and Erin Woo, “TikTok Ban Bill Spotlights Open Secret: App Loses Money,” The Information, March 13, 2024, available at https://www.theinformation.com/articles/tiktok-ban-bill-spotlights-open- secret-app-loses-money.
149 News articles have mentioned, for example, Jimmy Donaldson (content creator known as MrBeast), Larry Ellison (chairman, chief technology officer, and co-founder of Oracle), Frank McCourt (former Los Angeles Dodger owner), former Treasury Secretary Steven Mnuchin, Kevin O’Leary (an investor on the television show Shark Tank), and Perplexity (an AI start-up), among others. See Rebecca Schneid, “Who Might Buy TikTok? From MrBeast to Elon Musk, Here Are the Top Contenders,” Time, updated January 28, 2025, available at https://time.com/7209861/who- will-buy-tiktok-meet-contenders-mrbeast-elon-musk-billionaires/; and Shivani Tanna, “TikTok Returns on Apple, Google US App Stores as Trump Delays Ban,” Reuters, February 14, 2025, available at https://www.reuters.com/ technology/apple-restore-tiktok-us-app-store-after-attorney-generals-letter-bloomberg-news-2025-02-14/.
150 Executive Order 14196, “A Plan for Establishing a United States Sovereign Wealth Fund,” 90 Federal Register 9181, February 3, 2025.
151 Trevor Hunnicutt and Pete Schroeder, “Trump Orders Creation of U.S. Sovereign Wealth Fund, Says It Could Buy TikTok,” Reuters, February 4, 2025, available at https://www.reuters.com/markets/wealth/trump-signs-executive-order- create-sovereign-wealth-fund-2025-02-03/; and Andrew Duehren, “Trump Calls for Wealth Fund in Executive Order,” New York Times, February 3, 2025, available at https://www.nytimes.com/2025/02/03/us/politics/sovereign-wealth- fund-trump.html.
152 Ibid.
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as Meta’s Instagram Reels and Google’s YouTube Shorts, as well as other social media platforms such as Snapchat, X (formerly Twitter), or Reddit. Hundreds of thousands of TikTok users have reportedly joined RedNote (i.e., Xiaohongshu), a social media app operated by the Chinese company Xingyin Information Technology Ltd.153 A ban might also provide the opportunity for new social media platforms to emerge to serve the U.S. market, although a new platform might face difficulty competing with existing social media platforms.154
If TikTok were sold, the effect on other social media platforms would depend on the actions taken by the entity that purchased TikTok. For example, if the entity were to stop offering certain services or implements changes that some users do not like, the users might start using or spending more time on other social media platforms. Alternatively, if the entity were to make improvements to TikTok, individuals might spend more time on TikTok and less time on, or stop using, other social media platforms.
Which online service providers may be affected by PAFACAA’s prohibition of the distribution, maintenance, or updating of TikTok in the United States?
Section 2 of PAFACAA prohibits any entity from distributing, maintaining, or updating (or enabling these services of) TikTok or foreign adversary controlled applications “within the land or maritime borders of the United States,” starting 270 days after the enactment of the law (that is, on or after January 19, 2025).155 Any entity that violates Section 2 could be subject to a civil penalty in an amount to be determined based in part on the number of U.S. users who “have accessed, maintained, or updated” the TikTok or covered application using services provided by that entity.156 The Attorney General can “conduct investigations related to potential violations” and pursue enforcement against determined violations.157
While the act does not define “entity” under Section 2, the term could include at least the following two types of online service providers that carry out activities specified in the law:
• An online service provider that distributes, maintains, or updates a software application (including its source code) “by means of a marketplace.”158 The example of such marketplaces provided in the act is an “online mobile application store.”159 In the United States, the TikTok mobile app is mostly distributed through app stores operated by major mobile platform developers such as Apple Inc., (accessible through its iOS platform) and Google LLC
153 Meaghan Tobin, “Who Is Behind RedNote, the Chinese App Attracting TikTok Users?,” New York Times, January 17, 2025, available at https://www.nytimes.com/2025/01/17/us/politics/tiktok-ban-rednote-owner.html; and Rachel Treisman, “What to Know About RedNote, the Chinese App that American TikTokkers Are Flooding,” NPR, updated January 17, 2025, available at https://www.npr.org/2025/01/15/nx-s1-5260742/tiktok-china-rednote-xiaohongshu-app.
154 For example, social media platforms benefit from network effects, where the perceived value of an online platform as the number of active users grows, which can make it difficult for a nascent platform to compete with incumbents. For more information about network effects and other characteristics of online platforms, see CRS Report R47662, Defining and Regulating Online Platforms, coordinated by Clare Y. Cho.
155 PAFACAA §2(a)(1). The President may authorize a 90-day extension of the 270-day deadline when certain conditions are met. PAFACAA §2(a)(3).
156 PAFACAA §2(d)(1).
157 PAFACAA §2(d)(2)(A).
158 PAFACAA §2(a)(1)(A).
159Ibid.
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(through its Android platform). TikTok is available through other third-party app stores, including those operated by Amazon.com Inc., and Samsung Electronics Co. Ltd. Some software downloading websites have also allowed users to download TikTok installation packages (e.g., a TikTok Android Package Kit [APK]).160 To comply with Section 2 of the act, these app stores and websites would either have to remove TikTok from their offerings or make the app or its installation package unavailable to users within the United States.161
• An internet hosting service provider that enables the “distribution, maintenance, or updating” of such applications.162 The law defines the term internet hosting service as an online service that provides data storage and computing resources “for the accommodation and maintenance” of one or more websites or online services, including “file hosting, domain name server hosting, cloud hosting, and virtual private server hosting” for TikTok’s content and services.163 According to a network traffic analysis, TikTok may have used hosting service provided by at least 10 vendors, including U.S.-based cloud service providers Amazon Web Services (AWS), Google Cloud Platform, and Oracle Cloud.164
In September 2020, the Oracle Corporation announced that it had become TikTok’s “secure cloud technology provider” to deploy, scale, and operate TikTok systems in the Oracle Cloud.165 TikTok claims that it has “created a stand-alone version of the TikTok platform for the United States that is isolated inside servers in Oracle’s U.S. cloud environment but can communicate with the global TikTok service in controlled and monitored ways.”166
To comply with Section 2 of the act, an internet hosting service provider would have to either stop hosting TikTok’s content and services or disable “the distribution, maintenance, or updating of” TikTok for users within the United States.167
Additionally, upon request, “the entity that owns or controls” TikTok is required to provide “all the available data related to” a U.S. user’s account (including posts, photos, and videos) to the requesting user before the user lost access to the app.168 Such data would be intended to enable the user to transfer the content to “alternative applications.”169
160 For example, a popular software downloading website allowed users to download TikTok APKs up to version 38.3.1 released on January 15, 2025 (see https://mobile.softpedia.com/apk/musical-ly/).
161 PAFACAA §2(a)(1)(A).
162 PAFACAA §2(a)(1)(B).
163 Ibid.
164 “TikTok Application,” Netify.ai, available at https://www.netify.ai/resources/applications/tiktok, accessed March 2024.
165 Oracle Corporation, “Oracle Chosen as TikTok’s Secure Cloud Provider,” press release, September 19, 2020, available at https://www.oracle.com/news/announcement/oracle-chosen-as-tiktok-secure-cloud-provider-091920/.
166 “TikTok’s Commitment to U.S. National Security,” TikTok, available at https://usds.tiktok.com/usds-about/, accessed March 2024.
167 PAFACAA §2(a)(1)(B).
168 PAFACAA §2(b).
169 Ibid.
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Will users in the United States be able to access TikTok after PAFACAA is in effect?
Users in the United States were unable to access TikTok starting on the evening of January 18, 2025,170 hours before PAFACAA went into effect, until the afternoon of January 19, 2025.171 While TikTok was unavailable in the United States, some users may have attempted to access TikTok using a virtual private network (VPN) or other services that allow internet protocol (IP) address masking.172 To access TikTok, users reportedly could create a new account that had a location outside of the United States; users were reportedly unable to access accounts that were originally created in the United States, even using a VPN.173 The act does not specifically address any potential consequence for users within the United States who might access TikTok content or use its services through a VPN or other internet service (particularly with servers located outside the United States).
On January 20, 2025, President Trump signed E.O. 14166 instructing the Attorney General not to take any action to enforce the act for 75 days “to allow my Administration an opportunity to determine the appropriate course forward in an orderly way that protects national security while avoiding an abrupt shutdown of a communications platform used by millions of Americans.”174 The E.O. also instructs the Attorney General to “issue a letter to each provider stating that there has been no violation of the statute and that there is no liability for any conduct that occurred” from the effective date through the aforementioned 75 days.
Beginning the evening of January 18, 2025, TikTok and other apps operated by ByteDance—such as Lemon8 (another social media app) and CapCut (a video editing tool)—were removed from certain app stores, including the ones operated by Apple Inc. and Google LLC. Apple Inc. and Google LLC restored these apps in their respective app stores on February 13, 2025, reportedly after receiving letters from the Department of Justice assuring them that they would not face fines for carrying the apps.175
170 Users would see the following message while they were unable to access TikTok: “A law banning TikTok has been enacted in the U.S. Unfortunately, that means you can’t use TikTok for now. We are fortunate that President Trump has indicated that he will work with us on a solution to reinstate TikTok once he takes office. Please stay tuned!”
171 On the morning of January 19, 2025, President Trump posted on the social media app Truth Social that he would issue an E.O. on Monday and that there would be “no liability for any company that helped keep TikTok from going dark before my order” (see https://truthsocial.com/@realDonaldTrump/posts/113855616848696050). A few hours later, TikTok released a statement on the social media platform X that it was working with its service providers to restore service for U.S. users (see https://x.com/TikTokPolicy/status/1881030712188346459).
172 A VPN is “a virtual network built on top of existing networks that can provide a secure communications mechanism for data and IP information transmitted between networks.” National Institute of Standards and Technology, U.S. Department of Commerce, Computer Security Resource Center (CSRC) Glossary: Virtual Private Network (VPN), available at https://csrc.nist.gov/glossary/term/virtual_private_network. See also Aliza Vigderman and Gabe Turner, “How to Hide IP Addresses,” Security.org, January 16, 2024, available at https://www.security.org/vpn/hide-your-ip- address/.
173 Geoffrey Fowler, et al., “Can a VPN or the Web Get Around a TikTok Ban? A User Guide,” Washington Post, last updated January 19, 2025, available at https://www.washingtonpost.com/technology/2025/01/19/tiktok-banned-app- shut-down-vpn.
174 Executive Order 14166, “Application of Protecting Americans from Foreign Adversary Controlled Applications Act to TikTok,” 90 Federal Register 8611, January 20, 2025.
175 Sapna Maheshwari et al., “TikTok Returns to Apple and Google App Stores,” New York Times, February 13, 2025, https://www.nytimes.com/2025/02/13/technology/tiktok-apple-google-app-stores.html.
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What First Amendment considerations arise from government restriction of social media applications?
Laws regulating a medium of expression, such as a newspaper or other platform for speech, can trigger First Amendment scrutiny, meaning that if subject to a legal challenge, a court might review such a law for compliance with the First Amendment.176 Federal and state restrictions on TikTok have been subject to legal challenges alleging the restrictions violate the First Amendment’s Free Speech Clause. One trial court held a Montana restriction on TikTok was likely unconstitutional, as discussed above.177 Another trial court similarly issued a preliminary ruling on First Amendment grounds, preventing the federal government from enforcing an E.O. restricting transactions related to WeChat.178 In contrast, the Supreme Court ruled that PAFACAA did not violate the First Amendment rights of TikTok, ByteDance, or its users.179
One relevant issue in a First Amendment challenge is the type of free speech interest being asserted. While foreign corporations outside of a U.S. territory may not be able to claim First Amendment protections, separately incorporated organizations within the United States may raise First Amendment claims.180 In prior legal challenges, both TikTok and the platform’s U.S. users have asserted First Amendment claims. U.S. users may have an interest both in receiving speech from abroad181 as well as in purely domestic exchanges.
Generally, if a law burdens expressive activity, the level of constitutional scrutiny that a court applies depends in large part on the type of expression being regulated and how the law operates.182 Laws that regulate speech based on its content usually trigger an analysis known as strict scrutiny, under which a law is presumptively unconstitutional and valid only if it is the least restrictive means to serve a compelling government interest.183 Thus, if a law targeted TikTok or other speech platforms because of the speech they host, or targets certain speech on those platforms, it could trigger strict scrutiny and would be more likely to be held unconstitutional.184
In contrast, if a law did not target TikTok or another platform because of its speech and did not otherwise discriminate between particular viewpoints or types of content, it might be subject to review under intermediate scrutiny.185 Intermediate scrutiny requires the government to show the law advances an “important or substantial” government interest unrelated to the suppression of
176 U.S. Const. amend. I (“Congress shall make no law ... abridging the freedom of speech.”); see, for example, Arcara v. Cloud Books, Inc., 478 U.S. 697, 705-707 (1986) (explaining that while government regulation of conduct with “no element of protected expression” does not trigger First Amendment scrutiny, constitutional scrutiny is triggered by government action that targets “conduct with a significant expressive element” or “where a statute based on a nonexpressive activity has the inevitable effect of singling out those engaged in expressive activity”).
177 See supra “Have TikTok or other entities challenged any state actions to regulate TikTok in court?”; Alario v. Knudsen, Nos. CV 23-56-M-DWM & CV 23-61-M-DWM, 2023 WL 8270811, at *5 (D. Mont. Nov. 30, 2023), appeal filed, No. 24-34 (9th Cir. Jan. 3, 2024). For further discussion of the Alario case, see CRS Legal Sidebar LSB10972, Montana’s TikTok Ban, an Injunction, and Pending Legal Actions, by Sanchitha Jayaram and Madeline W. Donley.
178 U.S. WeChat Users Alliance v. Trump, 488 F. Supp. 3d 912, 917 (N.D. Cal. 2020).
179 Petition for Review at 30-56, TikTok Inc. v. Garland, No. 24-1113 (D.C. Cir. May 7, 2024).
180 Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 140 S. Ct. 2082, 2086-2087 (2020).
181 See, for example, Lamont v. Postmaster General, 381 U.S. 301, 305 (1965).
182 See generally, for example, CRS Report R47986, Freedom of Speech: An Overview, by Victoria L. Killion.
183 Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015); CRS In Focus IF12308, Free Speech: When and Why Content- Based Laws Are Presumptively Unconstitutional, by Victoria L. Killion.
184 See, for example, Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 229, 231 (1987).
185 For example, Turner Broad. Sys. v. FCC, 512 U.S. 622, 661-662 (1994).
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speech and is “no greater than is essential” to further this interest.186 Under some formulations of intermediate scrutiny, the government must also show that the law leaves open “ample alternative channels for communication of the information.”187 Intermediate scrutiny is easier to satisfy than strict scrutiny but is still relatively robust: the trial court rulings referenced above concluded that the federal and state governments had likely failed to satisfy intermediate scrutiny.188
In TikTok and ByteDance’s challenge to PAFACAA, the D.C. Circuit held that the act triggered heightened constitutional scrutiny because it “singles out TikTok, which engages in expressive activity, for disfavored treatment.”189 At the same time, the court concluded that it did not need to determine exactly which level of scrutiny applied because the law survived even strict scrutiny.190
The Supreme Court affirmed the judgment.191 The Court assumed without deciding that the challenged provisions in the act burden expressive activity and trigger First Amendment scrutiny.192 It held that the provisions are content-neutral on their face and that the government’s interest in preventing the PRC from collecting sensitive personal data is a content-neutral justification for the act.193 Accordingly, the Supreme Court applied intermediate scrutiny, and determined that as applied to TikTok, ByteDance, and the users challenging the law the provisions survive that test.194 The Court held that the government’s data protection interest is important and that the challenged provisions serve that interest in a direct and effective way.195
The Supreme Court’s ruling thus confirms that laws like PAFACAA can implicate First Amendment interests—but that the federal government can satisfy constitutional scrutiny by citing “well supported national security concerns.”196 The Court was careful to specify that its ruling was limited to the factual circumstances presented in the case before it. This application of the law was justified based on “TikTok’s scale and susceptibility to foreign adversary control, together with the vast swaths of sensitive data the platform collects.”197
186 Turner Broad. Sys., 512 U.S. at 662.
187 Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984).
188 U.S. WeChat Users Alliance v. Trump, 488 F. Supp. 3d 912, 927-928 (N.D. Cal. 2020); Alario v. Knudsen, Nos. CV 23-56-M-DWM & CV 23-61-M-DWM, 2023 WL 8270811, at *8 (D. Mont. Nov. 30, 2023), appeal filed, No. 24- 34 (9th Cir. Jan. 3, 2024). For a more in-depth discussion of possible First Amendment limitations on the federal government’s ability to regulate TikTok, see CRS Legal Sidebar LSB10942, Restricting TikTok (Part II): Legislative Proposals and Considerations for Congress, coordinated by Peter J. Benson; and CRS Legal Sidebar LSB11127, Regulation of TikTok Under the Protecting Americans from Foreign Adversary Controlled Applications Act: Analysis of Selected Legal Issues, by Peter J. Benson, Valerie C. Brannon, and Joanna R. Lampe.
189 TikTok Inc. v. Garland, 122 F.4th 930, 949 (D.C. Cir. 2024).
190 Ibid. at 952. For additional analysis of the D.C. Circuit’s decision, see CRS Legal Sidebar LSB11252, TikTok v. Garland: Constitutional Challenges to the Protecting Americans from Foreign Adversary Controlled Applications Act, by Peter J. Benson, Valerie C. Brannon, and Joanna R. Lampe.
191 TikTok Inc. v. Garland, Nos. 24-656 and 24-657, slip op., at 20 (U.S. Jan. 17, 2025) (per curiam).
192 Ibid. at 9.
193 Ibid. at 10–11.
194 Ibid. at 13.
195 Ibid. at 13–16.
196 Ibid. at 19.
197 Ibid. at 12.
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How might the Bill of Attainder Clause apply to legislation that names TikTok?
Article I, Section 9, Clause 3, of the Constitution prohibits Congress from enacting bills of attainder—legislation that imposes punishment on an identifiable person or group without trial.198 Because PAFACAA and some other recent legislative proposals identify TikTok or ByteDance by name, questions have arisen as to whether such legislation and proposals may be unconstitutional bills of attainder.199
Courts analyzing bill of attainder challenges consider three questions. First, does the challenged bill apply with specificity? Second, does it impose punishment? Third, does it do so without a judicial trial? If all three factors are met, a court must strike down the legislation as a bill of attainder.200
With respect to the first question, if a bill applies to a named individual or entity, courts are likely to hold that the specificity requirement is satisfied.201 Historical bill of attainder cases involved legislation that targeted individuals or identifiable groups of people.202 Although the Supreme Court has not considered whether the Bill of Attainder Clause also protects corporations such as TikTok and ByteDance, federal appeals courts considering bill of attainder challenges brought by corporations have either held that the clause protects corporations203 or assumed that it does.204 Identifying TikTok or ByteDance by name in legislation may meet the specificity requirement.
The second question, whether a bill imposes punishment, is the most complex. Courts apply three tests for assessing whether a law imposes punishment, known as the historical, functional, and motivational tests.205 The historical test deems a law to be punitive if it is one of a limited set of legislative actions that were held to be bills of attainder from before the founding of the United States through the mid-20th century, including banishment, imprisonment, confiscation of property, or employment bans.206 The functional test is generally given the most weight of the three tests and considers “whether the law under challenge, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes.”207 The third test for punishment considers whether the legislature that enacted a
198 Nixon v. Administrator of General Services, 433 U.S. 425, 468 (1977). A related provision prohibits state bills of attainder. U.S. Const. art. I, §10, cl. 1.
199 With respect to the provisions in PAFACAA that name TikTok, a CRS Legal Sidebar discusses why courts may be unlikely to strike down materially similar provisions as a bill of attainder. See CRS Legal Sidebar LSB11127, Regulation of TikTok Under the Protecting Americans from Foreign Adversary Controlled Applications Act: Analysis of Selected Legal Issues, by Peter J. Benson, Valerie C. Brannon, and Joanna R. Lampe.
200 Nixon, 433 U.S. at 470-473.
201 See, for example, ibid. at 471-472 (acknowledging the challenged act’s “specificity—the fact that it refers to appellant by name”).
202 See, for example, ibid. at 473-475; see also United States v. Lovett, 328 U.S. 303 (1946) (barring certain named individuals from drawing federal salaries); United States v. Brown, 381 U. S. 437 (1965) (prohibiting Communists from serving as labor union officers); Ex parte Garland, 4 Wall. 333 (1867) (barring former Confederate sympathizers from holding certain jobs); Cummings v. Missouri, 4 Wall. 277 (1867) (same).
203 For example, Consolidated Edison Co. of N.Y., Inc. v. Pataki, 292 F.3d 338, 349 (2d Cir. 2002).
204 For example, Kaspersky Lab, Inc. v. U.S. Dept. of Homeland Sec., 909 F.3d 446, 543-554 (D.C. Cir. 2018); SBC Communications, Inc. v. FCC, 154 F.3d 226, 234 (5th Cir. 1998).
205 Nixon, 433 U.S. at 473-483.
206 Ibid. at 473-475.
207 Ibid. at 475-476; see also Kaspersky Lab, 909 F.3d at 455.
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challenged law was motivated by an intent to punish the targeted entity.208 The question of whether a bill imposes punishment is highly fact-dependent. A court reviewing legislation naming TikTok would likely assess the provisions aimed at TikTok under these three tests to determine whether the law was punishing TikTok. As a general matter, review of whether legislation is punitive for purposes of the Bill of Attainder Clause is deferential, and federal courts rarely strike down laws as bills of attainder.209
With respect to the third question, if a bill provides for a judicial trial before imposing sanctions, it falls outside the prohibition on bills of attainder.210 Thus, a bill that imposed legal consequences on TikTok or another entity only after a trial likely would not be struck down as a bill of attainder.211
TikTok and ByteDance argued that PAFACAA is an unlawful bill of attainder in their lawsuit challenging the constitutionality of that act.212 The D.C. Circuit rejected the argument.213 The court concluded that the law applies with the requisite specificity because provisions of the act apply to TikTok by name.214 The court held, however, that the law is not punitive under any of the three tests for assessing whether a law imposes a punishment, and thus is not an unconstitutional bill of attainder.215 The Supreme Court declined to review the portion of the D.C. Circuit’s decision rejecting TikTok and ByteDance’s Bill of Attainder Clause argument.216
What Takings Clause considerations might be raised by legislation that regulates TikTok?
The Fifth Amendment’s Takings Clause prohibits the United States from taking private property without just compensation.217 The Takings Clause’s protections apply to U.S. persons and to 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.218
208 Nixon, 433 U.S. at 478.
209 For additional discussion of bill of attainder doctrine, see CRS., Bills of Attainder Doctrine, Constitution Annotated, available at https://constitution.congress.gov/browse/essay/artI-S9-C3-2/ALDE_00013187/ (last visited Mar. 21, 2024).
210 See, for example, Nixon, 433 U.S. at 538-539 (“Under our cases, therefore, bills of attainder require two elements: first, a specific designation of persons or groups as subjects of the legislation, and, second, a[n] ... arbitrary deprivation ... without notice, trial, or other hearing.”).
211 Some federal appeals courts have held or assumed that the Bill of Attainder Clause does not apply to actions of the executive branch. See Paradissiotis v. Rubin, 171 F.3d 983, 988 (5th Cir. 1999) and cases cited. The Supreme Court has not considered this question, and the facts in prior cases differ from agency enforcement against TikTok that might be authorized under existing legislative proposals. However, the limited available authority suggests that legislation imposing legal consequences only after discretionary agency action may not be struck down as a bill of attainder.
212 Petition for Review at 56-59, TikTok Inc. v. Garland, No. 24-1113 (D.C. Cir. May 7, 2024).
213 TikTok Inc. v. Garland, 122 F.4th 930, 967 (D.C. Cir. 2024).
214 Ibid.
215 Ibid. at 967–69. For additional analysis of the D.C. Circuit’s decision, see CRS Legal Sidebar LSB11252, TikTok v. Garland: Constitutional Challenges to the Protecting Americans from Foreign Adversary Controlled Applications Act, by Peter J. Benson, Valerie C. Brannon, and Joanna R. Lampe.
216 TikTok Inc. v. Garland, Nos. 24-656 and 24-657, slip op. (U.S. Jan. 17, 2025) (per curiam).
217 Ibid.; Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 536 (2005). 218 For example, Atamirzayeva v. United States, 77 Fed. Cl. 378, 385 (Fed. Cl. 2007) (“Regarding the Takings Clause of the Fifth Amendment, nonresident aliens may invoke the Takings Clause to seek remuneration for the expropriation of their property located within the United States. . . . However, the precise issue regarding whether a nonresident alien must demonstrate a substantial connection with the United States to have standing to invoke the Takings Clause (continued...)
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The Supreme Court has distinguished between two types of takings: physical takings and regulatory takings.219 Physical takings are the “paradigmatic” example of a taking and occur when the government directly appropriates or physically invades private property.220 Regulatory takings involve a government acting in its “regulatory capacity”221 and are typically analyzed under the framework created by the Supreme Court in Penn Central Transportation Company v. New York City.222 Under the Penn Central framework, courts consider the following three factors to determine if there is a regulatory taking: (1) “[t]he economic impact of the regulation on the claimant,” (2) “the extent to which the regulation has interfered with distinct investment-backed expectations,” and (3) “the character of the government action,” such as whether it is akin to a physical invasion or whether it is “adjusting the benefits and burdens of economic life to promote the common good.”223
An analysis of a law regulating TikTok under the Penn Central factors would be inherently fact- specific and could depend, for example, on the extent of the act’s economic impact and the reasonableness of ByteDance’s expectations when it invested in musical.ly.224 As a general matter, any national security arguments invoked by the government could make it difficult for a Takings Clause challenge to succeed. Courts have observed that national security is a paramount governmental interest, and courts have said that valid regulatory actions serving substantial national security interests weigh against a determination that a compensable taking has occurred.225
In their lawsuit challenging the constitutionality of PAFACAA, TikTok and ByteDance alleged that the law effects a per se regulatory taking.226 A regulatory action can constitute a per se taking—which is not analyzed under the Penn Central factors—if it “completely deprives an owner of all economically beneficial use of [its] property.”227 TikTok and ByteDance argued that PAFACAA qualifies as a per se taking because the act renders TikTok’s platform defunct.228 The D.C. Circuit disagreed.229 The court reasoned that, because TikTok can pursue a qualified divestiture, the act does not effect a “total economic deprivation” and is not a per se taking.230 The
regarding property outside the United States remains unsettled.”) (citing Russian Volunteer Fleet v. United States, 282 U.S. 481, 491-492 (1931)).
219 See Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 321 (2002) (“The text of the Fifth Amendment itself provides a basis for drawing a distinction between physical takings and regulatory takings.”).
220 Lingle, 544 U.S. at 537 (“The paradigmatic taking requiring just compensation is a direct government appropriation or physical invasion of private property.”).
221 Buffalo Teachers Federation v. Tobe, 464 F.3d 362, 374 (2d Cir. 2006).
222 438 U.S. 104 (1978).
223 Ibid. at 124.
224 See A&D Auto Sales, Inc. v. United States, 748 F.3d 1142, 1159 (Fed. Cir. 2014) (“Assessing the reasonableness of a plaintiff’s [distinct investment-backed] expectations ‘is an objective, but fact-specific inquiry into what, under all the circumstances, the [plaintiff] should have anticipated.’” (quoting Cienega Gardens v. United States, 331 F.3d 1319, 1346 (Fed. Cir. 2003))). 225 Haig v. Agee, 453 U.S. 280, 307 (1981) (“It is obvious and unarguable that no governmental interest is more compelling than the security of the Nation.”); Paradissiotis v. United States, 304 F.3d 1271, 1275 (Fed. Cir. 2002) (“Valid regulatory measures taken to serve substantial national security interests may adversely affect individual contract-based interests and expectations, but those effects have not been recognized as compensable takings for Fifth Amendment purposes.”). 226 Petition for Review at 62-65, TikTok Inc. v. Garland, No. 24-1113 (D.C. Cir. May 7, 2024).
227 Ibid. (quoting Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 538 (2005)).
228 TikTok Inc. v. Garland, 122 F.4th 930, 969 (D.C. Cir. 2024).
229 Ibid.
230 Ibid.
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Supreme Court declined to review the portion of the D.C. Circuit’s decision rejecting TikTok and ByteDance’s Takings Clause argument.231
What Due Process considerations might be raised by government regulation of TikTok?
Under the Fifth Amendment’s Due Process Clause, the federal government may not deprive any person of a protected property interest unless it provides them with notice of the deprivation and an opportunity to be heard before a neutral party.232 As with the Taking Clause, the Due Process Clause’s protections apply to U.S. persons and to foreign persons or entities that have “developed substantial connections” with the United States through presence or property.233 The Due Process Clause is primarily applied to actions taken by the executive branch; for legislative determinations, the Supreme Court has said that the legislative process may provide “all the process that is due”234 unless the law is “palpably arbitrary.”235
Beyond the core requirement of notice and an opportunity for a hearing, the Due Process Clause’s procedural requirements are flexible and may vary depending on the particular situation.236 To determine what procedures are required in any given case, courts apply a three-factor balancing test that the Supreme Court articulated in Mathews v. Eldridge.237 Under this test, the reviewing court must weigh (1) the private interests affected by the determination; (2) the risk of erroneous deprivation of such interests through the procedures the government used and the probable value, if any, of additional or substitute procedures; and (3) the government’s interest at stake.238
The application of this test can lead to different requirements in different circumstances. For example, the D.C. Circuit has held that, before the President can order a company to divest an acquisition under the CFIUS process, the government must first provide the affected company with notice of the determination and an opportunity to rebut the evidence supporting it.239 On the other hand, when the government has added persons to sanctions lists without prior notice, courts have concluded that the government’s interest in preventing “asset flight” outweighs litigants’ need for a pre-deprivation hearing.240
231 TikTok Inc. v. Garland, Nos. 24-656 and 24-657, slip op. (U.S. Jan. 17, 2025) (per curiam).
232 Kerry v. Din, 576 U.S. 86, 111 (2015) (Breyer, J., dissenting) (“Due Process Clause procedures ... normally include notice of an adverse action, an opportunity to present relevant proofs and arguments, before a neutral decisionmaker, and reasoned decisionmaking.”); Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (“An essential principle of due process is that a deprivation of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the nature of the case.”) (internal quotation marks and citation omitted). 233 See National Council of Resistance of Iran v. Department of State, 251 F.3d 192, 203 (D.C. Cir. 2001) (holding that a foreign entity, which had been designated by the State Department as a foreign terrorist organization, was entitled to due process protections because it “entered the territory of the United States and established substantial connections with this country”). 234 Atkins v. Parker, 472 U.S. 115, 116 (1985).
235 Kansas City Southern Ry. Co. v. Road Imp. Dist. No. 3 of Sevier County, Ark., 266 U.S. 379, 386 (1924).
236 Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
237 424 U.S. 319, 334 (1976).
238 Nelson v. Colorado, 581 U.S. 128, 135 (2017); Mathews, 424 U.S. at 335.
239 Ralls Corp. v. CFIUS, 758 F.3d 296, 319-321 (D.C. Cir. 2014).
240 For example, Al Haramain Islamic Foundation, Inc., v. U.S. Dep’t of Treasury, 686 F.3d 965, 985 (9th Cir. 2012) (“As the district court noted, and as many courts have held, the potential for ‘asset flight’ almost certainly justifies [the Office of Foreign Asset Control’s] decision not to provide notice before freezing the assets.”).
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Courts have found it problematic when a party is unable to examine and challenge the evidence on which a determination is based.241 However, when a determination is based on classified information, courts have recognized that forcing the executive branch to disclose such information would “compel a breach in the security which that branch is charged to protect.”242 In some cases, courts have deemed it sufficient for the government to provide unclassified summaries of the evidence or have required the government to submit the classified information in camera for the court’s review (i.e., permitting only the court to view it).243
Due Process Clause analysis may be particularly relevant if legislation provides for executive branch determinations. To comply with the Due Process Clause, any executive branch decision implicating TikTok or ByteDance’s property rights would likely need to provide, at a minimum, notice of the determination, ability to examine any unclassified evidence on which the decision was based, and an opportunity to rebut that evidence.
Could a ban, divestiture, sale, or other efforts to regulate TikTok have broader policy implications for digital trade?
Until 2023, the United States promoted the free flow of data across borders and opposed data localization requirements in its free trade agreements.244 These policies were included as negotiating objectives in trade agreements beginning with the passage of the most recent Trade Promotion Authority in 2015 (TPA-2015, P.L. 114-26). In fall 2023, the Office of the United States Trade Representative (USTR) withdrew its support for proposals at the World Trade Organization (WTO) that supported open cross-border data flows and opposed data localization. USTR also suspended digital trade talks in the Indo-Pacific Economic Framework for Prosperity. USTR Katherine Tai attributed the decision to the need for domestic policy “space” on digital economy issues given rapid technological advancement and shifting domestic conversations on regulation of the technology sector.245
Data security
Congress and the executive branch took actions to restrict cross-border data and support data localization in instances when national security or the security of sensitive data on U.S. citizens is at risk. The Biden Administration issued Executive Order 14117 in February 2024, which aims to restrict access to Americans’ personal data and American government related data when access poses an “unacceptable national security risk” by prohibiting and restricting certain transactions with foreign adversaries, including China.246 The Protecting Americans’ Data from Foreign Adversaries Act of 2024 (P.L. 118-50, Division I), enacted alongside PAFACAA, introduces new
241 Ralls Corp., 758 F.3d at 318 (“Both the Supreme court and this Court have recognized that the right to know the factual basis for the action and the opportunity to rebut the evidence supporting the action are essential components of due process.”).
242 Fares v. Smith, 901 F.3d 315, 324 (D.C. Cir. 2019).
243 See ibid. at 322-324 (discussing cases where courts have required in camera review of classified evidence or have found sufficient unclassified summaries in lieu of classified evidence).
244 Data localization policies require that data generated within a country be stored and processed on servers within that country. For more information on issues related to cross-border data flows and digital trade policy, see CRS In Focus IF12347, Digital Trade and Data Policy: Key Issues Facing Congress, by Danielle M. Trachtenberg.
245 Fireside chat with USTR Katherine Tai, Aspen Security Forum, December 7, 2023. Remarks available at https://www.aspensecurityforum.org/dc-2023-videos.
246 Executive Order 14117, “Preventing Access to Americans’ Bulk Sensitive Personal Data and United States Government-Related Data by Countries of Concern,” 89 Federal Register 15421, February 28, 2024.
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restrictions on data brokers selling or transferring certain U.S. user data to foreign adversaries or certain entities under their control.
Further Reading
CRS Report R47662, Defining and Regulating Online Platforms, coordinated by Clare Y. Cho.
CRS Legal Sidebar LSB10940, Restricting TikTok (Part I): Legal History and Background, by Steve P. Mulligan.
CRS Legal Sidebar LSB10942, Restricting TikTok (Part II): Legislative Proposals and Considerations for Congress, coordinated by Peter J. Benson.
CRS Legal Sidebar LSB10972, Montana’s TikTok Ban, an Injunction, and Pending Legal Actions, by Sanchitha Jayaram and Madeline W. Donley.
CRS Legal Sidebar LSB11166, Montana’s TikTok Ban Goes Before the Ninth Circuit, by Sanchitha Jayaram.
CRS Legal Sidebar LSB11127, Regulation of TikTok Under the Protecting Americans from Foreign Adversary Controlled Applications Act: Analysis of Selected Legal Issues, by Peter J. Benson, Valerie C. Brannon, and Joanna R. Lampe.
CRS Legal Sidebar LSB11252, TikTok v. Garland: Constitutional Challenges to the Protecting Americans from Foreign Adversary Controlled Applications Act, by Peter J. Benson, Valerie C. Brannon, and Joanna R. Lampe.
CRS In Focus IF10177, Committee on Foreign Investment in the United States (CFIUS), by Cathleen D. Cimino-Isaacs and Karen M. Sutter.
CRS In Focus IF12640, TikTok and China’s Digital Platforms: Issues for Congress, by Karen M. Sutter and Michael D. Sutherland.
CRS In Focus IF11803, U.S. Capital Markets and China: Issues for Congress, by Michael D. Sutherland and Karen M. Sutter.
CRS In Focus IF12347, Digital Trade and Data Policy: Key Issues Facing Congress, by Danielle M. Trachtenberg.
Co-Authors and Contributors
The CRS Analysts and Attorneys listed below co-authored and contributed to this report:
• Peter J. Benson, Legislative Attorney (Co-Coordinator)
• Valerie C. Brannon, Legislative Attorney
• Clare Y. Cho, Specialist in Industrial Organization and Business Policy (Co-Coordinator)
• Cathleen Cimino-Isaacs, Specialist in International Trade and Finance
• Joanna R. Lampe, Legislative Attorney
• Chris D. Linebaugh, Legislative Attorney
• Michael D. Sutherland, Analyst in International Trade and Finance (Coordinator)
• Karen M. Sutter, Specialist in Asian Trade and Finance
• Danielle M. Trachtenberg, Analyst in International Trade and Finance
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• Ling Zhu, Analyst in Telecommunications Policy
Author Information
Michael D. Sutherland Analyst in International Trade and Finance
Clare Y. Cho
Specialist in Industrial Organization and Business Policy
Peter J. Benson Legislative Attorney
Acknowledgments
Kristen E. Busch, former CRS Analyst in Science and Technology Policy, co-coordinated and contributed to previous versions of this report.
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you wish to copy or otherwise use copyrighted material.