Congress’ TikTok Legislation
Overview of Federal Law and Constitutional Issues
In April 2024, Congress enacted the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACAA) as part of a supplemental appropriations act. The PAFACAA makes it unlawful to provide certain services to “distribute, maintain, or update … a foreign adversary-controlled application” in the United States unless the covered application’s owners execute a “qualified divestiture” within a specified timeframe.
The act expressly includes applications operated by TikTok or its parent company ByteDance Ltd. in the definition of “foreign adversary-controlled application.” Approximately two weeks after Congress enacted the PAFACAA, TikTok and ByteDance sued to enjoin enforcement of the act. In their court filing, TikTok and ByteDance claim 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.
