The State of America’s Tech War with China

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.