Recently, several public threats by United States Government officials to ban TikTok triggered national discourse on the impact of technology on national security.[1] In April 2024, President Biden signed The Protecting Americans From Foreign Adversary Controlled Applications Act (“Act”) which bans Americans from downloading TikTok.[2] The Act requires ByteDance, the Chinese tech-giant which owns most of the social media application (“app”) TikTok, to sell the app within 12 months or face its removal from U.S. app stores.[3]
In January 2025, TikTok’s lawyers argued that the Act violates the First Amendment before the Supreme Court of the United States.[4] Although the Act does impact speech and a strong argument can be made for a First Amendment violation, the Act itself does give light to another Constitutional question: whether the Act is a bill of attainder.[5] However, this standard is very hard to surpass and was not successful for TikTok in the lower court.[6]
The Act makes it illegal for platforms, like the Apple App Store, to “distribute, maintain, or update” a “foreign adversary controlled application” within the United States.[7] To determine whether an app qualifies as a Foreign Adversary Controlled Application, the Act focuses on whether it is run, either directly or indirectly, by one of two groups.[8] The first group, described in Subparagraph (g)(3)(A), specifically names ByteDance and TikTok.[9] The second group, outlined in Subparagraph 2(g)(3)(B) includes any “covered company” which is a company controlled by a foreign adversary deemed by the President to pose a significant national security threat.[10] To fall under (g)(3)(B), specific explanations and qualifications give a warning to foreign controlled apps, unlike the explicit inclusion of TikTok under (g)(3)(A).[11]
The impacts of this Act rest largely on entities in the United States to stop providing support for the Foreign Adversary Controlled Application, rather than on TikTok itself.[12] It does, however, include an exemption “for qualified divestitures,”[13] allowing foreign adversary owners to sell their app and relinquish control in exchange for the app remaining available to Americans.[14]
On January 10th, 2025, the Supreme Court heard oral arguments on whether the Act violates the First Amendment.[15] The Court granted certiorari to review this question,[16] though, this is a “somewhat novel” set of facts to be arguing a claim for a violation of the First Amendment.[17] The D.C. Circuit Court, which previously heard this case, upheld the Act under strict scrutiny, finding that the speech restrictions imposed are narrowly tailored to address national security concerns.[18] The Supreme Court upheld the Act on January 17th, 2025, stating that their “analysis must be understood to be narrowly focused in light of these circumstances.”[19]
Despite this recent development, an argument that seems more obvious based on the language of the Act is that the Act is a bill of attainder and therefore unconstitutional.[20] Originally the bill of attainder clause in the Constitution aimed to prohibit federal and state laws from punishing a specific individual.[21] While the clause was initially interpreted to protect individuals, some courts, including the D.C. Circuit Court, extended it to corporations.[22] TikTok raised this argument in the Circuit Court, arguing that the specific reference to ByteDance and TikTok in the Act makes it a bill of attainder.[23] By naming these companies directly, the Act bypasses TikTok’s owners from the additional procedural safeguards outlined in Subsection (g)(3)(B).[24]
To determine whether a law is a bill of attainder, a court will consider whether it applies with specificity and imposes punishment.[25] The Circuit Court concluded that the Act applies with specificity since it names ByteDance and TikTok,[26] but the Act does not impose punishment.[27] Despite the Act’s language giving light to a bill of attainder claim, the D.C. Circuit quickly shut down this argument,[28] and TikTok was not given the chance to argue it in front of the Supreme Court.[29] Although the language of the Act may allude to the fact that the Act is a bill of attainder, the punishment aspect falls short.[30]
Though the Act undeniably impacts speech, the “somewhat novel” situation gave the Supreme Court an opportunity to create a First Amendment doctrine for new technology, especially social media.[31] Despite this, the Court did not, stating that when applying legal rules to new issues raised by technology, they “should not care to ‘embarrass the future.’”[32]
Yet, it still feels inherently wrong to grant other app owners, besides TikTok’s, a more proper procedure under Subsection (g)(3)(B).[33] The D.C. Circuit’s ruling leaves us questioning whether the law treats TikTok unfairly.[34] National Security concerns are important, and Congress must pass legislation that reflect these interests. However, if TikTok would still be considered a Foreign Adversary Controlled Application under Subsection (g)(3)(B) it seems unnecessary to single out TikTok and bypass procedural fairness and evaluation.[35]
Sophie DeBiase-Harris is a staff member of Fordham International Law Journal Volume XLVIII.
[1] See Bobby Allyn, President Biden signs law to ban TikTok nationwide unless it is sold, NPR (Apr. 24, 2024, 12:54 PM), https://www.npr.org/2024/04/24/1246663779/biden-ban-tiktok-us.
[2] See id.
[3] See Protecting Americans From Foreign Adversary Controlled Applications Act, Pub. L. No. 118-50, 138 Stat. 896 (2024); Allyn, supra note 1.
[4] See Transcript of Oral Argument, TikTok Inc. v. Garland, No. 24-656, https://www.supremecourt.gov/oral_arguments/audio/2024/24-656.
[5] See Alan Morrison, TikTok Ban Law Is an Awkward Fit for a First Amendment Challenge, Bloomberg Law (Jan. 7, 2025, 4:30 AM), https://www.bloomberglaw.com/product/blaw/bloomberglawnews/bloomberg-law-news/X40FJ6R4000000?bc=W1siU2VhcmNoICYgQnJvd3NlIiwiaHR0cHM6Ly93d3cuYmxvb21iZXJnbGF3LmNvbS9wcm9kdWN0L2JsYXcvc2VhcmNoL3Jlc3VsdHMvYmY0MmY2MjI1ZTc1NTI2YWJlMmYxNzM1MTI3MWY2ZWUiXV0–07025e2b6d73029270a211ae25dc2fb75ea203d8&bna_news_filter=bloomberg-law-news&criteria_id=bf42f6225e75526abe2f17351271f6ee&search32=FvnmBrRFZyaWYiGDiI5nug%3D%3DrBHOjtPrHqAF1TnVxI-_2QVwrI3M7iIvxJBNlaP1Rf7On5M1uTZogI6y3-sxyEJRtN9sFXYJkHOy8mapaBlU6Q%3D%3D; Joel Thayer & Joshua Levine, Is the TikTok Bill a Bill of Attainder?, The Federalist Society (Apr. 4, 2024), https://fedsoc.org/commentary/fedsoc-blog/is-the-tiktok-bill-a-bill-of-attainder.
[6] See TikTok Inc. v. Garland, 122 F.4th 930, 967-69 (D.C. Cir. 2024), cert. granted, No. 24-657 (24A588), 2024 WL 5148088 (U.S. Jan. 10, 2025).
[7] Protecting Americans From Foreign Adversary Controlled Applications Act § 2(a)(1).
[8] See id., at § 2(g)(3).
[9] See id., at § 2(g)(3)(A).
[10] Id., at § 2 (g)(3)(B).
[11] See id., at § 2(g)(3)(A),(B).
[12] See id., at § 2(a)(1); TikTok Inc. v. Garland, 122 F.4th 930, 945 (D.C. Cir. 2024), cert. granted, No. 24-657 (24A588), 2024 WL 5148088 (U.S. Jan. 10, 2025).
[13] See Protecting Americans From Foreign Adversary Controlled Applications Act § 2(c)(1).
[14] See id.; TikTok Inc. v. Garland, 122 F.4th at 945-946.
[15] See Bobby Allyn, Supreme Court agrees to review TikTok ban-or-sale law, NPR (Dec. 18, 2024, 12:25 PM), https://www.npr.org/2024/12/18/nx-s1-5233027/supreme-court-to-review-tiktok-ban.
[16] See Firebaugh v. Garland, No. 24-657 (24A588), 2024 WL 5148088 (U.S. Jan. 10, 2025).
[17] TikTok Inc. v. Garland, 122 F.4th at 948; see Alan Morrison, TikTok Ban Law Is an Awkward Fit for a First Amendment Challenge, Bloomberg (Jan. 7, 2025, 4:30 AM), https://www.bloomberglaw.com/product/blaw/bloomberglawnews/bloomberg-law-news/X40FJ6R4000000?bc=W1siU2VhcmNoICYgQnJvd3NlIiwiaHR0cHM6Ly93d3cuYmxvb21iZXJnbGF3LmNvbS9wcm9kdWN0L2JsYXcvc2VhcmNoL3Jlc3VsdHMvYmY0MmY2MjI1ZTc1NTI2YWJlMmYxNzM1MTI3MWY2ZWUiXV0–07025e2b6d73029270a211ae25dc2fb75ea203d8&bna_news_filter=bloomberg-law-news&criteria_id=bf42f6225e75526abe2f17351271f6ee&search32=FvnmBrRFZyaWYiGDiI5nug%3D%3DrBHOjtPrHqAF1TnVxI-_2QVwrI3M7iIvxJBNlaP1Rf7On5M1uTZogI6y3-sxyEJRtN9sFXYJkHOy8mapaBlU6Q%3D%3D.
[18] See TikTok Inc. v. Garland, 122 F.4th at 965.
[19] See TikTok Inc. v. Garland, No. 24-656, 2025 WL 222571, at *1 (U.S. Jan. 17, 2025).
[20] See U.S. Const. art. I, § 9, cl. 3; Morrison, supra note 13.
[21] See Joel Thayer & Joshua Levine, Is the TikTok Bill a Bill of Attainder?, The Federalist Society (Apr. 4, 2024), https://fedsoc.org/commentary/fedsoc-blog/is-the-tiktok-bill-a-bill-of-attainder.
[22] See id.; TikTok Inc. v. Garland, 122 F.4th at 967.
[23] See TikTok Inc. v. Garland, 122 F.4th at 967.
[24] See Protecting Americans From Foreign Adversary Controlled Applications Act § 2(g)(3)(A); Morrison, supra note 13.
[25] See TikTok Inc. v. Garland, 122 F.4th at 967 (citing BellSouth Corp. v. FCC (BellSouth II), 162 F.3d 678, 683 (D.C. Cir. 1998)).
[26] See TikTok Inc. v. Garland, 122 F.4th at 967; see also Protecting Americans From Foreign Adversary Controlled Applications Act § 2(g)(3)(A).
[27] See TikTok Inc. v. Garland, 122 F.4th at 967.
[28] See id., at 967-69.
[29] See Firebaugh v. Garland, No. 24-657 (24A588), 2024 WL 5148088 (U.S. Jan. 10, 2025).
[30] See TikTok Inc. v. Garland, 122 F.4th at 967-69.
[31] Id., at 948; see Morrison, supra note 13.
[32] TikTok Inc. v. Garland, No. 24-656, 2025 WL 222571, at *1 (U.S. Jan. 17, 2025) (quoting Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292, 300 (1944)).
[33] See Protecting Americans From Foreign Adversary Controlled Applications Act § 2(g)(3).
[34] See TikTok Inc. v. Garland, 122 F.4th 930 (D.C. Cir. 2024), cert. granted, No. 24-657 (24A588), 2024 WL 5148088 (U.S. Jan. 10, 2025).
[35] See Protecting Americans From Foreign Adversary Controlled Applications Act § 2(g)(3).
This is a student blog post and in no way represents the views of the Fordham International Law Journal.