Georgetown Law
Technology Review

This April, Congress passed the Protecting Americans from Foreign Adversary Controlled Applications Act (“PAFACA”), which is designed “to protect the national security interests of the United States from the threat posed by foreign adversary-controlled applications.” The Act targets TikTok, a popular social media platform owned by Chinese company ByteDance Ltd., by requiring either its divestiture to an American-owned company or otherwise prohibiting its use in the United States. However, this legislation falls short in pursuing its goal of protecting national security interests, as it fails to prevent the sale of large swaths of Americans’ data by data brokers to any interested seller. Additionally, it threatens the values underlying the First Amendment by restricting U.S. citizens’ speech and access to information. Other legislation—namely, the Protecting Americans’ Data from Foreign Adversaries Act of 2024, which targets the sale of data to foreign adversary countries—demonstrates a more viable alternative without infringing on the interests and values of American citizens.

PAFACA falls short of its aim to protect the U.S.’s national security interests.

Government officials cite national security concerns as the main justification for the Act. Rep. Raja Krishnamoorthi (D-IL), co-author of the bill and Ranking Member of the Select Committee on the Strategic Competition Between the United States and the Chinese Communist Party, stated that TikTok “poses critical threats to our national security,” such as “digital surveillance and influence operations.” House Energy and Commerce Committee Chair Cathy McMorris Rodgers (R-WA) stated that foreign adversary-controlled applications “can be weaponized to target, manipulate, and surveil millions of Americans.” Federal Communications Commissioner Brendan Carr praised the bill’s ability to “definitively resolve the serious threat TikTok poses to America’s national security.”

However, PAFACA does not sufficiently protect these national security interests. While it may cut off one direct source for foreign adversary countries to obtain information on American citizens, it does not solve the issue. Data brokers collect, aggregate, and sell virtually any and every kind of personal information available, from home addresses to financial information to real-time location data. Research shows that there is a significant risk of foreign adversary countries obtaining personal information of American citizens from data brokers. Thus, foreign adversaries, such as the Chinese Communist Party (“CCP”), can buy data that they would otherwise obtain from applications like TikTok from these data brokerage markets. While a TikTok ban would pose a hurdle to directly collecting this information, it would not prevent foreign adversaries from obtaining it from the other easily available means. Foreign adversaries have successfully conducted influence operations on American-owned social media platforms in the past, without direct control over the presentation of content or directly-collected information about users’ content preferences. In sum, this bill does little to defend the national security interests asserted by various government officials in support of its passage.

PAFACA infringes on Americans’ freedom of expression and access to information.

Critics of the PAFACA, including the ACLU and other civil rights and liberties groups, argue that the statute violates the First Amendment rights of Americans who use the application for communicating, obtaining information, and engaging in advocacy. A ban of the platform likely does not explicitly breach any constitutional rights: the First Amendment does not protect foreign speakers located outside of the United States, so foreign-owned ByteDance would not enjoy constitutional privileges. Additionally, citizens do not hold a constitutional right to speak on privately-owned platforms, as the First Amendment only constrains the government’s restriction of speech. However, the Supreme Court indicated in Lamont v. Postmaster General that United States citizens may have a First Amendment right to receive speech from foreign speakers. In any case, the Act infringes on the spirit of the First Amendment by restricting free expression, open access to information, and citizens’ opportunity to assemble and advocate for change. The millions of Americans—roughly a third of U.S. adults—who use the application will lose TikTok as a choice to speak, learn, and organize.

This threat to free expression is exacerbated when one considers the text of PAFACA, which grants the President the sole authority to determine what foreign adversary-owned companies (in addition to TikTok) “present a significant threat to the national security of the United States.” Core tenants underlying the First Amendment include allowing citizens to criticize elected officials, express political dissatisfaction, and share information outside of the control of government—all of which are necessary to foster an effective democracy and enable progress and development within society.

Additionally, the Supreme Court rejected the notion that the Executive Branch can abridge the First Amendment in the name of some vague, overbroad notion of national security in the Pentagon Papers case, New York Times Co. v. United States. In that case, the Court emphasized that a finding that the President has the “inherent power” to prevent the publication of news “would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make ‘secure.’” When the President has the unilateral ability to designate what social media platforms are dangerous to national security and thus must either change ownership or face a ban, the executive branch wields power to shape national conversations and obstruct speech and the spread of information. This unchecked Executive power poses a threat to our nation’s democratic foundation and values of free expression in a vague effort to protect security.

Other legislation better strikes at the alleged national security threats.

While PAFACA falls short in protecting national security interests, another bill that was passed alongside it in the National Security Act of 2024 meets some of its shortcomings. The Protecting Americans’ Data from Foreign Adversaries Act of 2024 seeks to outlaw the sale, transfer, or disclosure of Americans’ “personally identifiable sensitive data” to specified foreign adversary countries, including China, Iran, North Korea, and Russia. This bill prevents third-party data brokers from selling or otherwise providing data that was not collected directly from or offered by the individual. This legislation is a more robust effort to prevent the concerns cited in support of PAFACA, as it addresses the threats posed by data brokers’ sale and distribution of Americans’ personal data. Additionally, it avoids some of the pitfalls PAFACA falls into—namely, broad threats to First Amendment values—by providing exceptions for the transmission or provision of data with the individual’s permission or that is related to news reporting, publishing, general sharing of information by citizens, or the provision of services or products unrelated to data brokerage. Thus, this Act fills the gaping hole left by PAFACA, which specifically targets TikTok while allowing data brokers to sell and share U.S. citizens’ information to any buyer, and it does so without encroaching on citizens’ expressive rights.

Federal legislators should favor solutions that solve the problems they aim to address rather than expending time and public resources on legislation that falls short in achieving their asserted goals and infringes on fundamental American values.