Congress Wants to Act on Chinese-Owned TikTok: Can it Overcome Political and Legal Hurdles?

Regulating TikTok has become an increasingly urgent legislative priority in Congress.

By: Jake Perlmutter: Staff Editor

The 118th Congress has devoted significant attention to TikTok, the popular social media app owned by Chinese-headquartered company Bytedance.  While many lawmakers agree that some form of action is necessary, legislation regulating TikTok and other foreign-owned social media apps is destined to face political challenges, with potential legal challenges looming.

The Scene

The 118th Congress is poised to take legislative action on the data privacy concerns posed by the wildly popular social media app TikTok. TikTok is a wholly owned subsidiary of the Chinese-headquarted company ByteDance Ltd. U.S. lawmakers remain concerned that, pursuant to its 2017 Cybersecurity Law, the Chinese government will be able to obtain user data from ByteDance, despite reassurances to the contrary by TikTok CEO Shou Zi Chew at a March congressional hearing.  The road to creating a new federal law regulating TikTok’s potential use of American user data is paved with partisan pitfalls and post-passage constitutional questions.

Pending Data Legislation

The bill furthest along in the legislative process is H.R. 1153, alternatively known as the DATA Act.  The bill unsurprisingly cruised through the House Foreign Affairs Committee (HFAC) after being sponsored by Representative Michael McCaul (R-TX), the Chair of the Committee.  After passing through committee, however, the bill was placed on the Union Calendar on a pure party-line vote, an ominous sign for its eventual passage in a divided Congress with a Democrat in the White House.   The version of the bill reported out of committee effectively supplements the International Emergency Economic Powers Act (50 U.S.C. 1702(b)) by making clear that the President has the authority to regulate the international transfer of data.  It further empowers the President to sanction covered entities, like TikTok, to prevent them from doing business in the United States.  Experts say these changes would be tantamount to banning TikTok in the United States.

S. 686, alternatively known as the RESTRICT Act, has an easier path to passage than the DATA Act’s very difficult one.  Introduced by Senator Mark Warner (D-VA) with significant bipartisan co-sponsorship and President Biden’s endorsement, the bill would empower the Secretary of Commerce to review social media applications and refer them to the President, who would then have the power to take action, including forcing TikTok’s Chinese-based owner to divest from the company.  Unlike the aforementioned DATA Act, the RESTRICT Act does not compel the President to take any specific action, making the bill more palatable to the Biden Administration which has an interest in maintaining discretion.  

Stephen Myrow, Managing Partner at Beacon Policy Advisors, a Washington, D.C. based political consulting firm, is not so rosy on the RESTRICT Act’s imminent passage, despite its broad bipartisan support. He believes that for now, the legal battleground will stay at the state level in the wake of Montana’s passage of the nation’s first TikTok ban: 

While inaction is the most likely route at the federal level, there is still the potential for further state-level action.  Smaller steps, such as more states passing limits on government officials’ use of the app, would not be unexpected but taking larger swings, like proposing bans on the app, at least for the time being, are unlikely to transpire.  This caution primarily because many will be watching first to see how Montana’s attempt to ban the app survives in court. 

In a recent phone conversation, Myrow indicated that congressional Republicans are less bullish on the RESTRICT Act than they once were out of concerns that President Biden might be less willing to actually exercise the power delegated to him by the bill.

Potential Legal Problems

In May 2023, Montana became the first U.S. state to effectively ban TikTok after Governor Greg Gianforte (R-MT) signed a bill that would fine mobile-based app stores for hosting TikTok on their platforms.  In a complaint for injunctive relief, a group of Montana-based TikTok creators, as well as TikTok itself, argued that the ban violates the First Amendment of the U.S. Constitution and the Due Process Clause of the Fourteenth Amendment, among other federal laws.  While federal proposals to effectively ban or significantly regulate the app look different from the law in Montana, these First Amendment and Due Process issues will be broadly relevant for any piece of legislation that regulates TikTok at both the federal and state level.

For example, the Congressional Research Service (CRS) notes that legislation such as the RESTRICT Act, one of the more “moderate” TikTok-regulating bills being considered, still might run into the aforementioned First Amendment and Due Process issues, while also potentially implicating the Takings Clause of the Fifth Amendment and the prohibition on Bills of Attainder found in Article I, Section 9, Clause 3 of the U.S. Constitution. While Takings Clause challenges related to International Emergency Economic Powers Act actions are typically unsuccessful and a recent case has indicated that Bill of Attainder arguments are difficult to make when national security is implicated, the fact that these potential legal challenges lurk beyond an already tiresome legislative process suggests that federal legislative action is unlikely t to be imminent.      

Jake Perlmutter is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law.  He graduated from Vanderbilt University in 2021.  Prior to law school, he worked as a government affairs associate at the U.S.-China Business Council, a trade association representing U.S.-based companies that conduct business in China.