Banning TikTok: Protecting Americans from Foreign Adversary Controlled Applications Act

by Dennis Crouch

Along with my work in intellectual property, I also spent a lot of time focusing on internet law issues and their interrelation with AI, privacy, speech and security.  We have seen growing calls for action surrounding Section 230 modifications and social media censorship, and several pending Supreme Court cases could reshape the legal landscape governing online platforms.

Banning TikTok: The U.S. House of Representatives passed a bill this week, with a vote of 352-65, that could potentially ban TikTok in the United States. The bill, called the Protecting Americans from Foreign Adversary Controlled Applications Act, would require TikTok to divest from its China-based parent company ByteDance or face consequences such as being cut off from app stores and hosting services in the U.S.

U.S. legislators are concerned about TikTok being a Chinese company primarily due to national security and data privacy issues. I’ll first note here that the U.S. maintains a statutory list of foreign adversary countries. The current list is short – just four nations, including China:

(A) the Democratic People’s Republic of North Korea;

(B) the People’s Republic of China

(C)the Russian Federation; and

(D)the Islamic Republic of Iran.

10 U.S.C. 4872(d)(2).

With regard to TikTok, the core of these concerns stems from China’s regulatory environment, including the 2017 National Intelligence Law, which compels Chinese companies to support, assist, and cooperate with state intelligence work. Given TikTok’s vast global user base, including 100+ million U.S. users, this raises fears that the Chinese government could access, collect, and misuse the personal data of millions of users worldwide, including those in sensitive positions, for espionage, surveillance, or other improper activities. Furthermore, there are concerns about content manipulation and censorship, where the platform could be used to promote narratives or disinformation beneficial to Chinese interests while suppressing views or information deemed unfavorable.  So, while the Chinese government might not control day-to-day activities of TikTok, it has a strong power lever to pull when it has reason.

These concerns reflect broader geopolitical tensions and the struggle over technological supremacy and data sovereignty, making TikTok’s Chinese ownership a significant issue for legislators in the U.S. and other countries.  This relates to pre-internet situations where the U.S. prohibited the airwaves from being owned or controlled by foreign entities, much less entities under the rule of a country officially designated as a foreign adversary.

An example of a recent prompting event involves the Gaza war in Israel.  U.S. legislators largely support Israel’s annihilating civil war against Gaza and Hamas, and some evidence shows that TikTok is much more likely to show pro-Gaza videos than pro-Israel videos.  And, while the same may be true of Facebook, the difference in the eyes of U.S. legislators is that TikTok is controlled by a foreign adversary.  And, we may also recall that Facebook and other U.S. focused social media (including TikTok) are banned in China itself. (Note that China has a version of TikTok that is entirely separate known as 抖音 (Dǒuyīn), that is apparently much more highly censored).

Although the new law directly names TikTok and ByteDance, it also covers other websites or apps that are controlled by a foreign adversary country; with at least 1 million active users; and that is the U.S. President determines “presents a significant threat to [U.S.] national security.”

It is unclear whether the Senate will move the bill forward this term. President Biden has indicated that he will sign it.

38 thoughts on “Banning TikTok: Protecting Americans from Foreign Adversary Controlled Applications Act

  1. 7

    The House bill expressly singles out ByteDance Ltd and their TikTok application by name and attempts to declare it guilty and punish it (force a sale) without the benefit of a trial or any other judicial due process. Does anyone have any views as to why those particular sections of the bill wouldn’t qualify as a “bill of attainder” prohibited by Art. I, Sec. 9, Cl. 3 of our Constitution?

    Other portions of the bill are somewhat better worded as law with more general applicability and so should be OK on that score. But it would be have been better if the House had focused solely on those behaviors of real concern by any entity (regardless of country of origin) that stores data profiles on Americans. Maybe ByteDance would still violate those other more general sections and after a trial would be appropriately punished by a court of law, but that doesn’t seem to be something for Congress to declare on its own.

    I do not object to the U.S. in the interest of national security, data privacy, and election integrity, prohibiting operation in the U.S. of internet hosting services and their applications by entities owned or controlled by foreign adversary countries, or setting conditions for their operation in the U.S. related to retention, privacy and restricted access to user account information and profiles by any foreign adversary governments, together with any content (e.g., photos, posts, videos) generated and posted by their users. But such prohibitions and conditions should be generally applicable and not target any one particular entity, however convenient a scapegoat that target might be.

    1. 6.2

      Out of curiosity, I looked at that application, which was filed on 12/11/23. It is a “continuation” of another application that went abandoned. Given that these applications are related, it is possible that the new claims filed in the new application were intended to address problems identified during prosecution of the old application and the Examiner allowed it on that basis. I’m not sure why they just didn’t file a RCE in the old application and present the new claims, but the filing of a continuation application works just as well.

      There is, however, an interesting problem with the priority. I don’t think the new application can claim priority to the old application (i.e., be a continuation). A Final Rejection was issued 3/30/23 in the old application, and an after-final response was filed on 5/30, but that response was not entered. The Advisory Action (6/12/23) did not extend the period of reply. Hence, the old application appears to have been abandoned as of 11/30 (6 months after 5/30), which is prior to the filing date of the new application.

      The Advisory Action itself stated that period to reply expires on the mailing date of the Advisory Action or no later than 6 months from the mailing date of the final rejection. However, it looks like they tried to get 6 months from the filing date of the Advisory Action. Another problem is that to get the 6 months you still need to file the extension of time, which they didn’t do.

      I would be interested to know if anyone else has a different take on that priority claim.

      As to the new claims, they are exceptionally narrow and on that basis I’m not surprised that the Examiner allowed the claims.

      The application was also a Continuation of a PCT application, which I’m not sure is proper based upon the timeframe. However, I looked at the PCT application and it spawned 2 different US applications. The one that got abandoned and another one. That another one has claims very similar to the claims that got allowed, so from there is perhaps where that claim set derived.

      1. 6.2.1

        That CON was not filed on 12/11/23. It was filed while its parent application was still alive so there are no continuity issues.

    2. 6.3

      Why are you looking for something nefarious here when it’s possible nothing nefarious happened? You used to work at the USPTO. You know plenty of examiners give priority treatment to continuations when they hit their dockets because they’re typically easier to work on than something brand new.

  2. 5

    Totally off-topic, but yesterday’s new guidance memo from the U.S. judicial conference specifically provides (pg. 2) that it “applies to all civil cases, including patent cases… .” That “including patent cases” is interesting—in the context of a memo about random assignment of cases among judges in a given district—because there are lots of kinds of civil cases, but only patent cases get called out for special consideration.

    This is not a good thing. In the same way that it is not good for patent law when the Supreme Court takes special notice of us, it is likewise not good when the judicial conference takes special notice of us. The patent system runs best when it runs in the background.

    In any event, the memo provides that “[d]istrict courts should apply district-wide assignment to civil actions seeking to… mandate nationwide enforcement of a federal law,… whether by declaratory judgment and/or any form of injunctive relief.” As I read that, it means that a patentee who explicitly limits the prayer for relief to legal damages might still seek to steer the case to a specific judge.

    How necessary to their business model do NPEs find the ability to seek an injunction? Is the value of landing in front of Judge Albright important enough to make it worthwhile to foreswear equitable remedies at the front end of the case?

    1. 5.1

      It hasn’t run in the background for decades
      (The ‘0h N0es, Tr011s’ propaganda has been running rampant for at least that long).

    2. 5.2

      Maybe I’m misinformed or maybe you’re being too subtle for me, but the shrieking on the internet has consistently asserted that injunctions are dead letters post Ebay. So this doesn’t seem noteworthy.

      Doubly not noteworthy as it seems like the Chief Judges of the Texas districts are likely to ignore the guidance.

      1. 5.2.1

        Re: ..”the Chief Judges of the Texas districts are likely to ignore the guidance.”
        Perhaps, but formal U.S. Judicial Conference Guidance, coming down to the Federal judges with the supervisory approval of the Chief Justice of the U.S. Supreme Court, is not like some mere PTO Director’s examination guidance memo being ignored by some PTO examiners and applicants.

    3. 5.3

      Thanks for noting that “yesterday’s new guidance memo from the U.S. Judicial Conference specifically provides (pg. 2) that it “applies to all civil cases, including patent cases… .” and is “seeking to… mandate nationwide enforcement of a federal law,… whether by declaratory judgment and/or any form of injunctive relief.”
      [BTW, is not that inconsistent with the earlier program to develop and assign patent cases in each circuit to judges developing experience with them?]
      But, is a patent infringement injunction against an individual defendant the kind of “nationwide enforcement” by rogue Trump appointed judges of attacks on Federal laws, agencies or rules intended here? See, e.g., this latest article:
      link to

      I agree that if only damages [including enhanced damages for willful infringement] are being requested in the complaint then this new Rule for more random judicial case assignments can be avoided. [And that is all that the many PAEs and other NPEs filing in Waco E.D.TX to get Judge Albright really want or can get anyway.]

    4. 5.4

      “The patent system runs best when it runs in the background.”


  3. 4

    I have mixed feelings on this one, as a. they definitely are messing with the psyche of children in the country as well as adults and b. on the other hand I do like a lot of the creators and vids (most do or the app wouldn’t be an issue).

  4. 3

    Since we have the memories of goldfish, lets us harken back to the days when Dick Cheney stovepiped us into an illegal war of aggression that killed perhaps a million people and is still echoing today; tortured to death at least 100 helpless US captives & was asleep at the wheel in charge of counterterrorism on August 6th, 2001 (a date which will live in infamy).

    The very overrated Obama was content to look forward rather than backward, so here we are. Compared to old Dick, DJT is a choir-boy.

    But let’s look backward exactly four years; couldn’t buy a roll of TP, Dow down 3000 points, bodies piling up in trucks, fear everywhere of hidden death & the sense that the wheels were off of civilization and the President was a useless foo l in the moment. That’s what I remember anyway.

    Bannking Tik Tok is like banning P orn. All it’s going to do is anger millions of prime-age voters for no actual benefit to anyone. That’s not great politics but maybe the big brains behind this stuff know better & they are playing a smarter game than I can imagine. Wouldn’t be the first time.

  5. 2

    Protecting Americans from Foreign Competition that is Advancing at a Faster Rate than Antiquated US competitors (5G, Tesla, Facebook) Using the Excuse of Spying in the way the US did in the 80’s with PROMIS Software.

  6. 1

    There are several problems with this.

    1. Former Treasury Secretary Stevie Mnuchin says he is putting together an investor group to buy Tik-Tok.

    link to

    Mnuchin is as bad as the Chinese dictatorship. He’s a Tr%mp sycophant.

    2. Unless they replace the Chinese algorithm that Tik-Tok uses it won’t make any difference.

    3. Google does the same thing in using your data, only Google is more pervasive. And they will hand your data over to law enforcement without a warrant.

    Do you know that the Census Bureau sells all of the Census data shortly after they get it all together?

    From: link to

    “The census records data specific to individual respondents are not available to the public until 72 years after a given census was taken, but aggregate statistical data derived from the census are released as soon as they are available.”

    They say they redact personal information such as your name and address thereby protecting your privacy. But Google has such a huge amount of metadata on you that I’ll bet they know exactly who you are and now they know how many bathrooms you have.

    Great for targeting advertising.

    1. 1.1

      China locked up 1.5 million Uygiers. How many innocent people did Trump lock up?

      China killed thousands at Tianeman square in 1989 (were you even born then?) and burned the bodies. When did Donny do that?

      China locks up people who speak out against the CCP. Which political opponents did Trump lock up?

      The CCP is in power in China. Donald Trump is not president of the USA.

      Comparing DJT to the CCP? Wow. The TDS is strong in this one.

      1. 1.1.1

        That happens.
        A lot.

        It even has a technical term: OMB-TDS.

        Never mind that Biden has been far more oppressive and authoritarian than Trump ever was, has been far more divisive than Trump ever was, has been far more lacking cognition than Trump ever did, and has embroiled us in far more global conflicts than Trump ever did.

        Other than illegal immigrants, who now is better off than they were four years ago?

        And no – I did not vote for Trump, and never would.

        Don’t let the Sprint Left obscure the fact that Biden has been a disaster with screeching of “Far Right.” Everyone except for the Sprint Left can see the plain facts.



          At a time when our nation and indeed the world (excepting communists, dictators, and their ilk of course) cries out for a John Kennedy or a Ronald Reagan, it’s stultifying that we’re stuck with these two jokers; neither of which can even hold a candle to Kennedy or Reagan.

          President Dementia / Puppet of the left . . . or President Megalomaniac.

          What a choice. What. a. Choice.


            Actually, Trump’s record is more conservative than Reagan’s.

            I hated him as a private citizen. As a president, he kept us out of new wars and got border crossings way down.

            The megalomanic is the one who is a tyrant.


          “who now is better off than they were four years ago?”

          LOL. Other than myself and everybody I know? I mean, there’s been some horrible Supreme Court decisions but none of that is Biden’s fault.

          Billy the Independent Thinker smells like Aaron Rogers’ jock strap. Go figure.


            I do suppose that if anyone knows the smell of Aaron Roger’s jockstrap, it would be you.


          Other than illegal immigrants, who now is better off than they were four years ago?
          We cannot ask all the people who died because of COVID because a certain party decided to politicize immunization and public health measures.

          Percentage of insured are at an all-time high.
          Salary increases outpace inflation.
          Economy added 14.8M jobs in Biden’s first 3 years.
          Stock market at an all-time high.
          I’m sure there are a lot of former college students happy to get out from under the burden of student loans.
          Inflation rate in the US is the best of the world’s leading economies.
          Our national security has been increased with the addition of new members to NATO and a recommitment of our current allies to containing our former #1 adversary — that adversary’s military being ground down based upon US leadership in providing aide to Ukraine.
          If you are in more red-aligned parts of the country you may have heard many Republican’s brag about infrastructure projects being implemented (although most didn’t vote for them).

          The biggest complaint I encounter from the right is about illegal immigration. And if I recall, the right tanked the biggest immigration reform bill in decades — after first supporting it — just because Donald didn’t want reform to happen on Biden’s watch during an election year.

          has embroiled us in far more global conflicts than Trump ever did
          Donald’s best buddies: Kim Jong Un (“[Kim] wrote me beautiful letters and they’re great letters. We fell in love.”), Erdogan (“Thank you very much. It’s a great honor and privilege – because he’s become a friend of mine – to introduce President Erdogan of Turkey”), Xi Jinping (“And I like President Xi a lot. I consider him a friend, and – but I like him a lot. I’ve gotten to know him very well. He’s a strong gentleman, right? Anybody that – he’s a strong guy, tough guy.”), Putin (““Had a long and very good conversation with President Putin of Russia. As I have always said, long before the Witch Hunt started, getting along with Russia, China, and everyone is a good thing, not a bad thing….”), Orban (““Viktor Orbán, the highly respected prime minister of Hungary, said Trump is the man who can save the western world.”). I’m not going to get into him using the language of (in)famous WW2 dictators such as BM and AH.

          Trump on NATO:
          Trump said “one of the presidents of a big country” at one point asked him whether the US would still defend the country if they were invaded by Russia even if they “don’t pay.” “No, I would not protect you,” Trump recalled telling that president. “In fact, I would encourage them to do whatever the hell they want. You got to pay. You got to pay your bills.”

          Trump wouldn’t get us into any global conflicts because he would let his buddies savage the world. He would hand Taiwan to China and Ukraine to Russia.

          Seriously, you need better sources for your news than OAN and Newsmax.


            Is mandating immunization politicizing it? I am confused.

            Under Trump, border crossings were way down. 1.4 million his last two years. Under Biden, we have had almost 8 million since he took office. They doubled his first month. That is because he undid all Trump’s policies and EOs.

            In comparison, only 12 million immigrants came in through Ellis Island in its 60-year history.

            Shocking, no? Let me know if you need links. I will give you the CBP for the numbers under Trump and Joe, and a History source for Ellis Island.


              “Is mandating immunization politicizing it? I am confused”

              You certainly are.


          “Biden has been far more oppressive and authoritarian than Trump ever was has been far more divisive than Trump ever was, has been far more lacking cognition than Trump ever did, and has embroiled us in far more global conflicts than Trump ever did.”

          Billy really, really loves polishing the belt buckle of this r a p i s t con artist who can’t recite two sentences without telling a l i e. I wonder why that is?



          Gee, how surprising that the two Sprint Left folk do what Sprint Left folk would do?

      2. 1.1.2

        We’re getting pretty far off topic here, but: “How many innocent people did Trump lock up?”

        You remember the whole “children in cages” thing, right? Not only did they lock up children, but they deported the parents separately, without even bothering to get their contact info. A nonprofit advocacy group ended up getting court permission to track down the parents in their home countries so they could reunite them with their children.


          The children in cages was under Obama. That has been debunked years ago.

          As far as children and parents, many grab children who are not theirs to help them get across the border. The dems were against genetic testing. Why?

          They detained them separately until they could ascertain if they were their children.

          Why don’t you care if they are?

    2. 1.2

      “They say they redact personal information such as your name and address thereby protecting your privacy.”

      That is so far from the extent of their privacy techniques that you must either be ignorant of the topic or trying to mislead people.

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