Independent presidential candidate Robert F. Kennedy Jr. announced he will file a lawsuit challenging the federal government’s April 24 TikTok ban, on First Amendment grounds.
“This decision is a catastrophe for free speech and a disaster for the thousands of young people who love TikTok and even make their living there,” Kennedy said. He continued, “They say it’s about China harvesting your data. That is a smokescreen. Because you know what? The intelligence agencies from lots of countries, especially ours, are harvesting your data from everywhere, all the time.”
Kennedy added, “TikTok users shouldn’t have to wait until I’m president to keep using TikTok.”
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Kennedy’s announcement came shortly after President Biden signed the controversial ban into law. In its initial form, the legislation was passed by the House in March, as reported by The Kennedy Beacon. Under the terms of the newly-signed legislation, the earliest the TikTok ban could start is January 2025, so the platform will be live through the November election.
What is the TikTok ban?
This new law forces the divestiture of the US assets and operational control of TikTok by the Chinese based, Cayman Island-registered company ByteDance. Should the company refuse to divest, TikTok will be shut down in the US. Although the bill cites “TikTok” and “ByteDance” it could be applied against any company “controlled by a foreign adversary” operating a social media app with at least 100,000 users.
According to Demand Sage, TikTok has 1.56 billion monthly users globally and is the fifth most popular social media platform, with roughly 170 million users in the US. Nearly 70% of TikTok users are between the ages 18 – 34.
The new law is both vague and broad in its definition of the terms “controlled” and “foreign adversary.” While short on specifics, it targets any “foreign person” with a 20% or greater stake in a tech company, even if the company is incorporated in the US or majority-owned by Americans. A company could be forced to divest if an American executive at the company is subject to decisional control by a foreign person deemed to be from an adversarial country. The law also applies to companies owned outright by a “foreign adversary,” although the legislation does not provide a list of which nations are considered adversarial for the purposes of future bans.
Public companies and most large private companies have international stakeholders, thus the law could subject most tech companies to a forced divestiture.
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It could also be enforced against people and entities from beyond China, Iran, Cuba, North Korea, Russia and Venezuela, the six countries officially named by the State Department as adversaries. This of course does not stop trade between China and the US – the two largest trading partners in the world.
Making the passage of the bill all the more puzzling is the fact that there is a long existing enforcement mechanism that the government can take against allegedly maleficent foreign investment via the Committee on Foreign Investment in the United States (CFIUS). In 2022, there were calls to stop Elon Musk’s acquisition of Twitter using CFIUS, due to Musk relying on investors from Saudi Arabia, Qatar and China, a strategy President Biden agreed was “worth being looked at,” as reported by CBS News.
Why replicate existing federal powers? Unlike CFIUS which relies on intricate inter-agency cooperation, the new law gives virtually untethered discretion to the president regarding the enforcement of corporate bans. This is why Representative Thomas Massie called the legislation a “trojan horse.”
