[House Report 118-417]
[From the U.S. Government Publishing Office]
118th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 118-417
======================================================================
PROTECTING AMERICANS FROM FOREIGN ADVERSARY
CONTROLLED APPLICATIONS ACT
_______
March 11, 2024.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mrs. Rodgers of Washington, from the Committee on Energy and Commerce,
submitted the following
R E P O R T
[To accompany H.R. 7521]
The Committee on Energy and Commerce, to whom was referred
the bill (H.R. 7521) to protect the national security of the
United States from the threat posed by foreign adversary
controlled applications, such as TikTok and any successor
application or service and any other application or service
developed or provided by ByteDance Ltd. or an entity under the
control of ByteDance Ltd., having considered the same, reports
favorably thereon without amendment and recommends that the
bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 2
Committee Action................................................. 12
Committee Votes.................................................. 12
Oversight Findings and Recommendations........................... 14
New Budget Authority, Entitlement Authority, and Tax Expenditures 14
Congressional Budget Office Estimate............................. 14
Federal Mandates Statement....................................... 14
Statement of General Performance Goals and Objectives............ 14
Duplication of Federal Programs.................................. 14
Related Committee and Subcommittee Hearings...................... 14
Committee Cost Estimate.......................................... 15
Earmark, Limited Tax Benefits, and Limited Tariff Benefits....... 15
Advisory Committee Statement..................................... 15
Applicability to Legislative Branch.............................. 15
Section-by-Section Analysis of the Legislation................... 15
Changes in Existing Law Made by the Bill, as Reported............ 18
PURPOSE AND SUMMARY
Communications applications that are owned and operated by
companies controlled by foreign adversary countries present a
clear threat to the national security of the United States.
This is because such applications can be used by those
countries to collect vast amounts of data on Americans, conduct
espionage campaigns, and push misinformation, disinformation,
and propaganda on the American public.
The United States has, for more than 100 years, restricted
foreign governments and persons from owning media outlets and
holding broadcast licenses. However, current law does not
address the situation where a foreign adversary country has
significant control over a company that operates a technology
application, even where such application poses a significant
threat to national security.
H.R. 7521, the ``Protecting Americans from Foreign
Adversary Controlled Applications Act'' protects Americans from
national security risks posed certain by applications
controlled by a foreign adversary of the United States. If an
application is determined to be a foreign adversary controlled
application, such as TikTok's parent company ByteDance, the
application must be divested so that is no longer in the
foreign adversary's control. If the application is not divested
within 180 days, entities in the United States would be
prohibited from distributing the application through an
application marketplace or store, and from providing web
hosting services. The 180 days would begin upon enactment of
the legislation for ByteDance, TikTok, and other subsidiaries;
for other foreign adversary controlled applications, the 180
days begins after a Presidential determination that the
application poses a significant threat to national security.
The legislation includes a requirement that foreign adversary
controlled applications provide users, upon request,
information related to the user's account, including photos,
videos, and posts, in a machine-readable format. This Act
addresses the immediate national security risks posed by TikTok
and establishes a framework for the Executive Branch to protect
Americans from future foreign adversary controlled
applications.
BACKGROUND AND NEED FOR LEGISLATION
Communications technologies and networks underpin the daily
lives of the American public and economy. Foreign adversaries
have used access to Americans' data, communications networks,
devices, and applications as entry points to disrupt Americans'
daily lives, conduct espionage activities, and push
disinformation and propaganda campaigns in an attempt to
undermine our democracy and gain worldwide influence and
control. This is all a detriment to our national security
interests.
One such adversary that has aggressively pursued this
strategy is the People's Republic of China (PRC). It has backed
hackers to disrupt our communications networks\1\ and used
``deceptive and coercive methods'' to shape global information.
As described by the U.S. Department of State, its goals are to
promote ``digital authoritarianism.''\2\ They have accomplished
some of these goals through coercion of companies headquartered
in the PRC. One way it does so is through its National
Intelligence Law of 2017, which requires PRC individuals and
entities to support PRC intelligence services, including by
providing data without regard to where that data was collected
and without any mechanism of due process.\3\
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\1\https://www.cisa.gov/news-events/cybersecurity-advisories/aa24-
038a.
\2\https://www.state.gov/gec-special-report-how-the-peoples-
republic-of-china-seeks-to-reshape-the-global-information-environment/.
\3\U.S. Department of Homeland Security, Office of Strategy, Policy
& Plans, Data Security Business Advisory: Risks and Considerations for
Businesses Using Data Services and Equipment From Firms Linked to the
People's Republic of China at 6 (December 22, 2020), https://
www.dhs.gov/sites/default/files/publications/20_1222_data-security-
business-advisory.pdf.
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Beijing ByteDance Technology is a Chinese internet
technology company headquartered in Beijing and operating in
the United States through a holding company (``ByteDance
Ltd.'') incorporated in the Cayman Islands.\4\ ByteDance Ltd.,
founded and headquartered in Beijing, was formed in 2012 and
launched a number of applications and products which became
extremely popular, including TikTok.\5\
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\4\Beijing ByteDance Technology and its Cayman Island holding
company, ByteDance Ltd., will interchangeably be referred to as
``ByteDance.''
\5\Joe Tidy and Sophia Smith Galer, TikTok: The story of a social
media giant, BBC News (5 August 2020). https://www.bbc.com/news/
technology-53640724.
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TikTok is now one of the most popular social media
platforms in the world. It is available in over 150 countries
and serves over 1 billion users.\6\ In the United States,
TikTok has over 170 million users and is especially popular
among teenagers and young adults who represent 35 percent of
its American user base.\7\
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\6\TikTok Statistics For 2024: Users, Demographics, Trend, What's
The Big Data (Nov. 29, 2023), https://whatsthebigdata.com/tiktok-
statistics/.
\7\Jamie Ding, Why TikTok is dangerously good at making you spend
money, L.A. Times (Dec. 3, 2023), https://www.latimes.com/business/
story/2023-12-03/why-tiktok-is-dangerously-good-at-making-you-spend-
money.
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Foreign adversary controlled applications present a clear
threat to the national security of the United States. This
includes TikTok due to ByteDance, Ltd.'s ownership of the
application.\8\
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\8\Judy Woodruff, CIA Director Bill Burns on War in Ukraine,
Intelligence Challenges Posed by China, PBS (Dec. 16, 2022, 6:50 P.M.),
https://www.pbs.org/newshour/show/cia-director-bill-burns-on-war-in-
ukraine-intelligence-challenges-posed-by-china.
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Outside reporting has indicated the breadth of TikTok's
reach, suggesting that its data collection practices extend to
age, phone number, precise location, internet address, device
used, phone contacts, social network connections, the content
of private messages sent through the application, and videos
watched.\9\ The risk posed by TikTok though is exacerbated by
the difficulty in assessing precisely which categories of data
it collects. For example, outside researchers have found
embedded vulnerabilities that allow the company to collect more
data than the app's privacy policy indicates.\10\
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\9\Geoffrey A. Fowler, Is it time to delete TikTok? A guide to the
rumors and the real privacy risks, Wash. Post (July 13, 2020), https://
www.washingtonpost.com/technology/2020/07/13/tiktok-privacy/. See also
Office of the Director of National Intelligence, National
Counterintelligence and Security Center, ``Operations Security (OPSEC)
Advisory, TikTok Concerns and Vulnerabilities'' (Mar. 2023), https://
www.dni.gov/files/NCSC/documents/nittf/OPSEC_Advisory_
TikTok_Concerns_and_Vulnerabilities.pdf.
\10\Fowler, supra note 2.
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Additionally, public reporting has repeatedly confirmed
statements made by the Executive Branch regarding the tight
interlinkages between ByteDance Ltd., TikTok, and the Chinese
Communist Party (CCP). For example, the Secretary of ByteDance
Ltd.'s CCP committee, Zhang Fuping, also serves as ByteDance
Ltd.'s Editor-in-Chief and Vice President and has vowed that
the CCP committee would ``take the lead'' across ``all product
lines and business lines,'' which includes TikTok.
Moreover, pursuant to the PRC's laws, the PRC can require a
company headquartered in the PRC to surrender all its data to
the PRC, making companies headquartered there an espionage tool
of the CCP:
The National Intelligence Law, passed in
China in 2017, requires that ``any organization'' must
assist or cooperate with CCP intelligence work.\11\
Such assistance or cooperation must also remain secret
at the PRC's request.\12\
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\11\Joe McDonald & Zen Soo, Why Does US See Chinese-Owned TikTok as
a Security Threat?, AP News (Mar. 24, 2023, 10:24 A.M.), https://
apnews.com/article/tiktok-bytedance-shou-zi-chew-
8d8a6a9694357040d484670b7f4833be.
\12\U.S. Department of Homeland Security, Office of Strategy,
Policy & Plans, Data Security Business Advisory: Risks and
Considerations for Businesses Using Data Services and Equipment From
Firms Linked to the People's Republic of China at 6 (December 22,
2020), https://www.dhs.gov/sites/default/files/publications/
20_1222_data-security-business-advisory.pdf/.
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The PRC's 2014 Counter-Espionage Law
requires that ``relevant organizations . . . may not
refuse'' to collect evidence for an investigation.\13\
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\13\McDonald & Soo, infra note 5.
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The PRC's Data Security Law of 2021
establishes that the PRC has the power to access and
control private data.\14\
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\14\Code Civil, Data Security Law of the People's Republic of
China, 2021, art (China).
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The PRC's Counter-Espionage Law grants PRC
security agencies nearly unfettered discretion, if
acting under an unrestricted understanding of national
security, to access data from companies.\15\
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\15\Library of Congress, China: Counterespionage Law Revised,
https://www.loc.gov/item/global-legal-monitor/2023-09-21/china-
counterespionage-law-revised/.
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As a result, the Department of Homeland Security has warned
that ``[t]he PRC's data collection actions result innumerous
risks to U.S. businesses and customers, including: the theft of
trade secrets, of intellectual property, and of other
confidential business information; violations of U.S. export
control laws; violations of U.S. privacy laws; breaches of
contractual provisions and terms of service; security and
privacy risks to customers and employees; risk of PRC
surveillance and tracking of regime critics; and reputational
harm to U.S. businesses.''\16\ These risks are imminent, but
other, unforeseen risks may also exist.
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\16\Data Security Business Advisory, supra note 6.
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Prior to 2022, several federal agencies, including the
Departments of Defense, State, and Homeland Security, issued
orders banning TikTok on devices for which those specific
agencies are responsible.\17\ A majority of states in the
United States have banned TikTok on state government devices
due to the national security threat posed by the application
under its current ownership.\18\
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\17\See, e.g., Neil Vigdor, ``U.S. Military Branches Block Access
to TikTok App Amid Pentagon Warning,'' N.Y. Times (Jan. 4, 2020),
https://www.nytimes.com/2020/01/04/us/tiktok-pentagon-military-
ban.html.
\18\Sawdah Bhainmiya, Here's a full list of the US states that have
introduced full or partial TikTok bans on government devices over
mounting security concerns, Business Insider (Jan. 15, 2023, 5:00 AM),
https://www.businessinsider.com/tiktok-banned-us-government-state-
devices-2023-1.
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As has been widely reported, TikTok. has proposed an
alternative to a ban, a proposal referred to as ``Project
Texas,'' which is an initiative to try and satisfy concerns
relating to TikTok's handling of U.S. user data. This proposal
was rolled out in July 2022. Under the proposal, U.S. user data
would be stored in the United States, using the infrastructure
of a trusted third party.\19\ However, under the initiative,
the application algorithm, source code, and development
activities would remain in China under ByteDance Ltd.'s control
and subject to PRC laws, subject to proposed safeguards
relating to cloud infrastructure and other data security
concerns. Project Texas would also allow ByteDance Ltd. to
continue to have a role in certain aspects of TikTok's U.S.
operations.\20\
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\19\TikTok Response to Sen Blackburn, June 30, 2022, https://
www.blackburn.senate.gov/services/files/A5027CD8-73DE-4571-95B0-
AA7064F707C1, p.2.
\20\See, e.g., TikTok v. Trump, 490 F.Supp.3d 73 (D.D.C. Sept. 27,
2020); Marland v. Trump, 20-cv-04597 (E.D. Pa. Sept. 18, 2020).
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Additionally, Project Texas would allow TikTok to continue
to rely on the engineers and back-end support in China to
update its algorithms and the source code needed to run the
TikTok application in the U.S.\21\ But allowing code
development in and access to U.S. user data from China
potentially exposes U.S. users to malicious code, backdoor
vulnerabilities, surreptitious surveillance, and other
problematic activities tied to source code development.
Furthermore, allowing back-end support, code development, and
operational activities to remain in China would also require
TikTok to continue to send U.S. user data to China to update
the machine learning algorithms and source code for the
application, and to conduct related back-end services, like
managing users' accounts.\22\
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\21\Id., p.3-5.
\22\See, e.g., Emily Baker White, EXCLUSIVE: TikTok Spied On Forbes
Journalists, Forbes (December 22, 2022), https://www.forbes.com/sites/
emilybaker-white/2022/12/22/tiktok-tracks-forbes-journalists-bytedance/
?sh=68c05b5d7da5.
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As of March 2024, Project Texas has not been completed.
Until Project Texas is complete, Beijing-based employees of
TikTok can access U.S. user data.\23\
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\23\Christianna Silva, What is Project Texas, TikTok's Best Chance
to Avoid a Deal, Mashable (March 28, 2023), https://mashable.com/
article/project-texas-tiktok.
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Finally, as TikTok's popularity continues to grow in the
United States, so does the risk it poses. Attempted action by
the Executive Branch to mitigate these risks has proven
unsuccessful, and therefore Congress must act to provide
congressional authority to protect U.S. national security.
Congress has previously taken such action with respect to
media companies in passing the Communications Act of 1934,
which limits foreign investment in television and radio
broadcast licenses.\24\ These foreign ownership restrictions
were originally adopted to protect national security interests
during wartime by preventing the airing of foreign propaganda
on broadcast stations.\25\ Today, applications like TikTok
operate in similar manner as other media companies in the
United States, and therefore they should be subject to foreign
ownership scrutiny too.
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\24\47 U.S.C. 310(b).
\25\In re Commission Policies and Procedures Under Section
310(b)(4) of the Communications Act, Foreign Investment in Broadcast
Licenses, 28 FCC Rcd 16244 (2013), https://www.fcc.gov/document/fcc-
clarifies-policy-foreign-investment-broadcast-licensees-0.
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Below is a list of public statements that have been made
regarding the national security risks posed by ByteDance Ltd.,
TikTok, and the CCP as well as past and ongoing actions being
taken to mitigate the national security risks associated with
these entities and similarly situated companies:
In May 2019, in connection with a review by
the Committee on Foreign Investment in the United
States (CFIUS), a company based in the PRC agreed to
divest its interest in a popular software application
reportedly due to concerns relating to potential access
by the PRC to American user data from the
application.\26\
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\26\Zack Whittaker, Grindr sold by Chinese owner after US raised
national security concerns, Tech Crunch. (March 6, 2020, 1:06 PM),
https://techcrunch.com/2020/03/06/grindr-sold-china-national-security/.
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On May 15, 2019, the President of the United
States (President) issued an Executive Order on
Securing the Information and Communications Technology
and Services Supply Chain, which stated that
``unrestricted acquisition or use in the United States
of information and communications technology or
services designed, developed, manufactured, or supplied
by persons owned by, controlled by, or subject to the
jurisdiction or direction of foreign adversaries . . .
constitutes an unusual and extraordinary threat to the
national security, foreign policy, and economy of the
United States.''\27\
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\27\Exec. Order No. 13,873, 84 FR 22689 (May 15, 2019), https://
www.federalregister.gov/documents/2019/05/17/2019-10538/securing-the-
information-and-communications-technology-and-services-supply-chain.
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On August 2, 2020, then-Secretary of State
Mike Pompeo stated that PRC-based companies ``are
feeding data directly to the Chinese Communist Party,
their national security apparatus.''\28\
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\28\Ronn Blitzer, Pompeo Warns TikTok Users' Personal Info Could Be
Going `Directly to the Chinese Communist Party, Fox News (Aug. 2, 2020,
12:39 P.M.), https://www.foxnews.com/politics/pompeo-warns-tiktok-
users-data-including-facial-pattern-residence-phone-number-could-be-
going-directly-to-the-chinese-communist-party.
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On August 6, 2020, the President concluded
that TikTok ``automatically captures vast swaths of
information from its users'' and that TikTok's
ownership by ByteDance Ltd. enables the PRC and CCP to
gain access to ``Americans' personal and proprietary
information,'' potentially allowing the CCP ``to track
the locations of Federal employees and contractors,
build dossiers of personal information for blackmail,
and conduct corporate espionage.''\29\
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\29\Exec. Order No. 13,942, 85 Fed. Reg. 48,637 (Aug. 6, 2020),
https://www.federalregister.gov/documents/2020/08/11/2020-17699/
addressing-the-threat-posed-by-tiktok-and-taking-additional-steps-to-
address-the-national-emergency (revoked by Exec. Order No. 14,034 (June
9, 2021), https://www.federalregister.gov/documents/2021/06/11/2021-
12506/protecting-americans-sensitive-data-from-foreign-adversaries).
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On August 6, 2020, the President issued an
Executive Order (E.O. 13942) that directed the
Secretary of Commerce to take actions that would have
prohibited certain transactions related to TikTok in 45
days if ByteDance failed to divest its ownership of
TikTok.\30\ The companies and content creators using
the TikTok mobile application filed lawsuits
challenging those prohibitions, as a result of which
two district courts issued preliminary injunctions
enjoining the prohibitions.\31\
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\30\Exec. Order No. 13942, 85 Fed. Reg. 51297 (Aug. 6, 2020).
\31\See, e.g., TikTok v. Trump, 490 F.Supp.3d 73 (D.D.C. Sept. 27,
2020); Marland v. Trump, 20-cv-04597 (E.D. Pa. Sept. 18, 2020).
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On August 14, 2020, the President found
``there is credible evidence . . . that ByteDance Ltd.
. . . might take action that threatens to impair the
national security of the United States.''\32\
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\32\Order of August 14, 2020, 85 Fed. Reg. 51,297 (Aug. 19, 2020),
https://www.govinfo.gov/content/pkg/FR-2020-08-19/pdf/2020-18360.pdf.
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On August 14, 2020, the President issued an
Executive Order directing ByteDance Ltd. to divest any
assets or property used to enable or support ByteDance
Ltd.'s operation of the TikTok application in the
United States and any data obtained or derived from
TikTok application or musical.ly application users in
the United States.\33\ The Order, however, remains the
subject of litigation.
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\33\Order of Aug. 14, 2020, ``Regarding the Acquisition of
Musical.ly By Bytedance Ltd.'' 85 Fed. Reg. 51297 (Aug. 19, 2020).
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On September 17, 2020, the Department of
Commerce concluded that the PRC, to advance ``its
intelligence-gathering and to understand more about who
to target for espionage, whether electronically or via
human recruitment,'' is constructing ``massive
databases of Americans' personal information'' and that
ByteDance Ltd. has close ties to the CCP, including a
cooperation agreement with a security agency and over
130 CCP members in management positions.\34\
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\34\TikTok Inc. v. Trump, 490 F. Supp. 3d 73, 78 (D.D.C. 2020)
(mem.). [BETTER CITATION: U.S. Dep't of Commerce, Mem. for the Sec'y,
Proposed Prohibited Transactions Related to TikTok Pursuant to
Executive Order 13942 (Sept. 17, 2020), ECF No. 22-1]
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Following the multiple judicial rulings that
enjoined the Executive Branch from enforcing the
regulations contemplated in E.O. 13942, on June 9,
2021, the President issued a new Executive Order that
rescinded E.O. 13942 and directed the Secretary of
Commerce to assess and take action, where possible,
against connected software applications that pose a
threat to national security more broadly.\35\
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\35\Exec. Order No. 14034, 86 Fed. Reg. 31423 (June 9, 2021).
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On June 9, 2021, the President issued an
Executive Order on Protecting Americans' Sensitive Data
from Foreign Adversaries, which stated that ``[f]oreign
adversary access to large repositories of United States
persons' data also presents a significant risk.''\36\
The EO stated that ``the United States must act to
protect against the risks associated with connected
software applications that are designed, developed,
manufactured, or supplied by persons owned or
controlled by, or subject to the jurisdiction or
direction of, a foreign adversary.''\37\
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\36\Exec. Order No. 14,034, 86 FR 31423 (Jun 9, 2021), https://
www.federalregister.gov/
documents/2021/06/11/2021-12506/protecting-americans-sensitive-data-
from-foreign-adversaries.
\37\Id.
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On October 26, 2021, lawmakers expressed
concerns that TikTok's audio and user location data
could be used by the CCP during the testimony of
Michael Beckerman, TikTok head of public policy for the
Americas and registered lobbyist for ByteDance Ltd.,
before a Senate Commerce Subcommittee on Consumer
Protection hearing.\38\
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\38\Diane Bartz & Sheila Dang, TikTok Tells U.S. Lawmakers It Does
Not Give Information to China's Government, Reuters (Oct. 26, 2021,
4:53 P.M.), https://www.reuters.com/technology/tiktok-tells-us-
lawmakers-it-does-not-give-information-chinas-government-2021-10-26/.
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On June 17, 2022, public reporting revealed
that leaked audio from more than 80 internal TikTok
meetings, China-based employees of ByteDance Ltd.
repeatedly accessed nonpublic data about U.S. TikTok
users, including the physical locations of specific
U.S. citizens.\39\
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\39\Emily Baket-White, Leaked Audio From 80 Internal TikTok
Meetings Shows That US User Data Has Been Repeatedly Accessed From
China, Buzzfeed. (June, 17, 2022), https://www.buzzfeednews.com/
article/emilybakerwhite/tiktok-tapes-us-user-data-china-bytedance-
access.
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On September 14, 2022, lawmakers expressed
concerns over TikTok's algorithm and content
recommendations posing a national security threat
during a hearing before the Senate Committee on
Homeland Security and Governmental Affairs with Vanessa
Pappas, Chief Operating Officer of TikTok.\40\
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\40\Vanessa Pappas, Testimony Before the U.S. Senate Committee on
Homeland Security and Governmental Affairs, https://
www.hsgac.senate.gov/wp-content/uploads/imo/media/doc/
Testimony-Pappas-2022-09-14-REVISED.pdf.
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On November 15, 2022, Federal Bureau of
Investigation (FBI) Director Christopher Wray testified
before the House Committee on Homeland Security that
TikTok's national security concerns ``include the
possibility that the [CCP] could use it to control data
collection on millions of users or control the
recommendation algorithm, which could be used for
influence operations if they so choose, or to control
software on millions of devices, which gives it an
opportunity to potentially technically compromise
personal devices.''\41\
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\41\Ariana Figueroa, Members of Congress Sign Up for TikTok,
Despite Security Concerns, Idaho Cap. Sun (Jan. 19, 2023, 12:26 P.M.),
https://idahocapitalsun.com/2023/01/19/members-of-congress-sign-up-for-
tiktok-despite-security-concerns/.
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On December 2, 2022, FBI Director Wray
stated that TikTok's data repositories on Americans
``are in the hands of a government that doesn't share
our values and that has a mission that's very much at
odds with what's in the best interests of the United
States. . . . The [CCP] has shown a willingness to
steal Americans data on a scale that dwarfs any
other.''\42\
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\42\Anisha Kohli, Why the FBI Is Concerned About TikTok, Time Mag.
(Dec. 3, 2022, 3:42 P.M.), https://time.com/6238540/tiktok-fbi-
security-concerns/.
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On December 5, 2022, Director of National
Intelligence Avril Haines stated, when asked about
TikTok and PRC ownership, ``It is extraordinary the
degree to which [the PRC] . . . [is] developing []
frameworks for collecting foreign data and pulling it
in, and their capacity to then turn that around and use
it to target audiences for information campaigns and
other things, but also to have it for the future so
that they can use it for a variety of means.''\43\
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\43\Transcript, Avril Haines, Dir. of Nat'l Intel., Fireside Chat
with DNI Haines at the Reagan National Defense Forum (Dec. 3, 2022),
https://www.dni.gov/index.php/newsroom/news-articles/news-articles-
2022/3660-fireside-chat-with-dni-haines-at-the-reagan-national-defense-
forum.
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On December 16, 2022, Central Intelligence
Agency Director William Burns explained that ``because
the parent company of TikTok is a [PRC] company, the
[CCP] is able to insist upon extracting the private
data of a lot of TikTok users in this country, and also
to shape the content of what goes on to TikTok as well
to suit the interests of the Chinese leadership.''\44\
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\44\Judy Woodruff, CIA Director Bill Burns on War in Ukraine,
Intelligence Challenges Posed by China, PBS (Dec. 16, 2022, 6:50 P.M.),
https://www.pbs.org/newshour/show/cia-director-bill-burns-on-war-in-
ukraine-intelligence-challenges-posed-by-china.
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On December 22, 2022, public reporting
revealed that ByteDance Ltd. employees accessed TikTok
user data and IP addresses to monitor the physical
locations of specific U.S. citizens.\45\
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\45\Emily Baker White, EXCLUSIVE: TikTok Spied On Forbes
Journalists, Forbes (December 22, 2022), https://www.forbes.com/sites/
emilybaker-white/2022/12/22/tiktok-tracks-forbes-
journalists-bytedance/?sh=68c05b5d7da5.
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On December 29, 2022, following its adoption
by Congress, the President signed into law a bill
banning the use of TikTok on government devices due to
the national security threat posed by the application
under its current ownership.\46\
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\46\David Ingram, Biden Signs TikTok Ban for Government Devices,
Setting Up a Chaotic 2023 for the App, NBC News (Dec. 30, 2022, 4:24
P.M.), https://www.nbcnews.com/tech/tech-news/tiktok-ban-biden-
government-college-state-federal-security-privacy-rcna63724.
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On January 20, 2023, public reporting
revealed that TikTok and ByteDance Ltd. employees
regularly engage in practice called ``heating,'' which
is a manual push to ensure specific videos ``achieve a
certain number of video views.''\47\
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\47\Emily Baker-White, TikTokt's Secret `Heating' Button Can Make
Anyone Go Viral, Forbes (Jan 20, 2023), https://www.forbes.com/sites/
emilybaker-white/2023/01/20/tiktoks-secret-heating-button-can-make-
anyone-go-viral/?sh=62d61d006bfd.
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In a court filing in June 2023,
a former employee of ByteDance Ltd. alleged
that the CCP spied on pro-democracy protestors
in Hong Kong in 2018 by using backdoor access
to TikTok to identify and monitor activists'
locations and communications.\48\
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\48\Brian Fung, Analysis: There is now some public evidence that
China viewed TikTok data, CNN (June 8, 2023, 10:28 A.M.), https://
www.cnn.com/2023/06/08/tech/tiktok-data-china/index.html.
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On November 1, 2023, public
reporting revealed that TikTok's internal
platform, which houses its most sensitive
information, was inspected in person by CCP
cybersecurity agents in the lead-up to the
CCP's 20th National Congress.\49\
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\49\Emily Baker-White, A Platform Storing TikTok Corporate Secrets
Was Inspected By The Chinese Government, Forbes (Nov. 1, 2023, 6:30
A.M.), https://www.forbes.com/sites/emilybaker-white/2023/11/01/a-
platform-storing-tiktok-corporate-secrets-was-inspected-by-the-chinese-
government/?sh=193ba64e23b2.
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In February 2023, Deputy Attorney General
Lisa Monaco stated, ``Our intelligence community has
been very clear about [the CCP's] efforts and intention
to mold the use of [TikTok] using data in a worldview
that is completely inconsistent with our own.''\50\
Deputy AG Monaco also stated, ``I don't use TikTok and
I would not advise anybody to do so because of
[national security] concerns.''\51\
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\50\John D. McKinnon, U.S. Threatens Ban if TikTok's Chinese Owners
Don't Sell Stakes, Wall St. J. (Mar. 15, 2023, 6:45 P.M.), https://
www.wsj.com/articles/u-s-threatens-to-ban-tiktok-if-
chinese-founder-doesnt-sell-ownership-stake-36d7295c.
\51\Lauren Feiner, High-Ranking DOJ Official Says She `Would Not
Advise' Consumers to Use TikTok, Citing Security Concerns, CNBC (Feb.
16, 2023, 4:55 P.M), https://www.cnbc.com/2023/02/16/dojs-lisa-monaco-
warns-against-tiktok-use-citing-security-concerns.html.
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On February 28, 2023, former Deputy National
Security Advisor Matthew Pottinger emphasized that it
has already been confirmed that TikTok's parent company
ByteDance has used the app to surveil U.S. journalist
as a means to identify and retaliate against potential
sources. The PRC has also shown a willingness to harass
individuals abroad who take stances that contradict the
Communist Party lines.\52\ The app can further be
employed to help manipulate social discourse and
amplify false information to tens of millions of
Americans.\53\
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\52\On Hong Kong Authorities' Transnational Repression, Press
Statement, Athony J. Blinken, Secretary of State (Dec. 15, 2023),
https://www.state.gov/on-hong-kong-authorities-transnational-
repression/; Transnational Repression, Freedom House, https://
freedomhouse.org/report/transnational-repression; The PRC has also
shown itself willing to harass Americans on U.S. soil. See, e.g., Josh
Rogin, Chinese police stations in NYC are part of a vast influence
operation, The Washington Post (Apr. 19, 2023), https://
www.washingtonpost.com/opinions/2023/04/19/chinese-police-new-york-
city-foreign-influence/.
\53\Matthew Pottinger, Testimony Before the U.S. House Select
Committee on the Chinese Communist Party, https://
selectcommitteeontheccp.house.gov/sites/evo-subsites/
selectcommitteeontheccp.house.gov/files/evo-media-document/2.28.2023-
hearing-transcript.pdf.
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On March 8, 2023, FBI Director Christopher
Wray testified before the Senate Permanent Select
Committee on Intelligence that the CCP, through its
ownership of ByteDance, could use TikTok to collect and
control users' data and drive divisive narratives
internationally.\54\
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\54\FBI Chief Says TikTok `Screams' of US National Security
Concerns, Reuters (Mar. 9, 2023, 4:43 P.M.), https://www.reuters.com/
technology/fbi-chief-says-tiktok-screams-us-national-security-concerns-
2023-03-08/.
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On March 22, 2023, elements of the
intelligence community provided a classified briefing
on the threat to members of the U.S. House of
Representatives Permanent Select Committee on
Intelligence and leadership of the Committee on Energy
and Commerce.
On March 23, 2023, Secretary of State Antony
Blinken testified before the House Committee on Foreign
Affairs that TikTok is a threat to national security
that should be ``ended one way or another.''\55\
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\55\Houston Keene, Blinken Suggests TikTok `Should Be Ended One Way
or Another', FOX NEWS (Mar. 23, 2023, 6:11 P.M.), https://
www.foxnews.com/politics/blinken-tiktok-should-be-ended.
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On March 23, 2023, during the testimony of
TikTok CEO Shou Chew before the House Committee on
Energy and Commerce, lawmakers expressed concerns about
the safety and security of the app, including TikTok's
relationship with the CCP.\56\
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\56\Dara Kerr, Lawmakers Grilled TikTok CEO Chew for 5 Hours in a
High-Stakes Hearing About the App, NPR (Mar. 23, 2023, 5:34 P.M.),
https://www.npr.org/2023/03/23/1165579717/tiktok-congress-hearing-shou-
zi-chew-project-texas.
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On March 23, 2023, Nury Turkel, the Chair of
the United States Commission on International Religious
Freedom, raised the alarm that TikTok's parent company,
ByteDance Ltd., has a strategic partnership with
China's Ministry of Public Security, and China's
domestic version of the app, Douyin, has been used to
collect sensitive information from Uyghurs and other
oppressed ethnic minority groups.\57\
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\57\Nury Turkel, Testimony Before the U.S. House Select Committee
on the Chinese Communist Party, https://
selectcommitteeontheccp.house.gov/sites/evo-subsites/
selectcommitteeontheccp.house.gov/files/evo-media-document/3.23.23-
hearing-transcript.pdf.
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On April 26, 2023, the Executive Branch
provided a classified briefing to members of the United
States Senate Committee on Commerce, Science, and
Transportation and the Senate Select Committee on
Intelligence on the threat.
On May 30, 2023, public reporting revealed
that TikTok has stored sensitive financial information,
including the Social Security numbers and tax
identifications of TikTok influencers and United States
small businesses, on servers in China accessible by
ByteDance Ltd. employees.\58\
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\58\Alexandra S. Levine, TikTok Creators' Financial Info, Social
Security Numbers Have Been Stored In China, Forbes (May 30, 2023, 6:30
A.M.), https://www.forbes.com/sites/alexandralevine/2023/05/30/tiktok-
creators-data-security-china/?sh=1af8f2657048.
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On June 5, 2023, the Executive Branch
provided a classified briefing to staff of the United
States Senate Committee on Banking and the U.S. House
of Representatives Committee on Energy and Commerce on
the threat.
In June 2023, at the request of the House
Permanent Select Committee on Intelligence, the
intelligence community provided a classified threat
briefing open to all members in the U.S. House of
Representatives.
On July 26, 2023, William Evanina, the
former director of the National Counterintelligence and
Security Center, pointed to TikTok as just one of many
areas of concern regarding the CCP's capabilities and
intent as an adversarial, malign competitor.\59\
---------------------------------------------------------------------------
\59\William Evanina, Testimony Before the U.S. House Select
Committee on Strategic Competition between the United States and the
Chinese Communist Party, https://selectcommitteeontheccp.house.gov/
sites/evo-subsites/selectcommitteeontheccp.house.gov/files/evo-media-
document/7.26.23-hearing-transcript.pdf.
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On September 28, 2023, the U.S. Department
of State's Global Engagement Center issued a report
that found that ``TikTok [c]reates [o]pportunities for
PRC [g]lobal [c]ensorship. The report stated that U.S.
Government information as of late 2020 showed that
``ByteDance maintained a regularly updated internal
list identifying people who were likely blocked or
restricted from all ByteDance platforms, including
TikTok, for reasons such as advocating for Uyghur
independence.''
On November 15, 2023, elements of the
intelligence community provided a classified briefing
to the United States Senate Select Committee on
Intelligence and the Committee on Commerce, Science,
and Transportation on the PRC's conduct of global
foreign malign influence operations, including through
platforms such as TikTok.\60\
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\60\Reuters, U.S. to Brief Senators on Foreign Online Influence
Focused on Israel, Ukraine (November 15, 2023), https://
www.reuters.com/world/us/us-senators-get-classified-briefing-foreign-
online-influence-2023-11-15/.
---------------------------------------------------------------------------
On November 30, 2023, John Garnaut of the
Australian Strategic Policy Institute remarked that
TikTok has sophisticated capabilities that create the
risk that TikTok can clandestinely shape narratives and
elevate favorable opinions while suppressing statements
and news that the PRC deems negative.\61\
---------------------------------------------------------------------------
\61\John Garnaut, Testimony Before the U.S. House Select Committee
on the Chinese Communist Party, https://
selectcommitteeontheccp.house.gov/sites/evo-subsites/
selectcommitteeontheccp.house.gov/files/evo-media-document/11.30.23-
hearing-transcript.pdf.
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On January 18, 2024, the U.S. House of
Representatives Select Committee on Strategic
Competition between the United States and the Chinese
Communist Party was briefed by a set of senior
interagency officials to discuss these matters.
On January 31, 2024, FBI Director Wray
testified before the Select Committee on Strategic
Competition between the United States and the Chinese
Communist Party that TikTok gives the PRC ``the ability
to control data collection on millions of users, which
can be used for all sorts of intelligence operations or
influence operations,'' and ``the ability, should they
so choose, to control the software on millions of
devices, which means the opportunity to technically
compromise millions of devices.''\62\
---------------------------------------------------------------------------
\62\The CCP Cyber Threat to the American Homeland and National
Security, Hearing, The Select Committee on the CCP (March. 1, 2024),
https://selectcommitteeontheccp.house.gov/committee-activity/hearings/
hearing-notice-ccp-cyber-threat-american-homeland-and-national-
security.
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On February 29, 2024, the U.S. House of
Representatives Committee on Energy and Commerce was
briefed by a set of senior interagency officials to
discuss these matters.
COMMITTEE ACTION
On March 23, 2023, the Committee on Energy and Commerce
held a full committee hearing. The title of the hearing was
``TikTok: How Congress Can Safeguard American Data Privacy and
Protect Children from Online Harms.'' The Committee received
testimony from:
Shou Chew, CEO, TikTok Inc.
On March 7, 2024, the Committee on Energy and Commerce held
a full committee hearing to review H.R. 7521. The title of the
hearing was ``Legislation to Protect Americans from the
National Security Threats Posed by Foreign Adversary Controlled
Applications.'' The Committee met in executive session pursuant
to a motion by Chair Rodgers, which was adopted by a record
vote of 43 yeas and 0 nays.
On March 7, 2024, the full Committee on Energy and Commerce
met in open markup session and ordered H.R. 7521 favorably
reported, without amendment, to the House by a record vote of
50 yeas and 0 nays.
COMMITTEE VOTES
Clause 3(b) of rule XIII requires the Committee to list the
record votes on the motion to report legislation and amendments
thereto. The following reflects the record votes taken during
the Committee consideration:
OVERSIGHT FINDINGS AND RECOMMENDATIONS
Pursuant to clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII, the Committee held hearings and made findings that
are reflected in this report.
NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX EXPENDITURES
Pursuant to clause 3(c)(2) of rule XIII, the Committee
finds that H.R. 7521 would result in no new or increased budget
authority, entitlement authority, or tax expenditures or
revenues.
CONGRESSIONAL BUDGET OFFICE ESTIMATE
Pursuant to clause 3(c)(3) of rule XIII, at the time this
report was filed, the cost estimate prepared by the Director of
the Congressional Budget Office pursuant to section 402 of the
Congressional Budget Act of 1974 was not available.
FEDERAL MANDATES STATEMENT
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES
Pursuant to clause 3(c)(4) of rule XIII, the general
performance goal or objective of this legislation is to force a
divesture or prohibit the distribution, maintenance, or
updating of foreign adversary controlled applications.
DUPLICATION OF FEDERAL PROGRAMS
Pursuant to clause 3(c)(5) of rule XIII, no provision of
H.R. 7521 is known to be duplicative of another Federal
program, including any program that was included in a report to
Congress pursuant to section 21 of Public Law 111-139 or the
most recent Catalog of Federal Domestic Assistance.
RELATED COMMITTEE AND SUBCOMMITTEE HEARINGS
Pursuant to clause 3(c)(6) of rule XIII, the following
hearings were used to develop or consider H.R. 7521:
On March 23, 2023, the Committee on Energy
and Commerce held a full committee hearing. The title
of the hearing was ``TikTok: How Congress Can Safeguard
American Data Privacy and Protect Children from Online
Harms.'' The Committee received testimony from:
Shou Chew, CEO, TikTok Inc.
On March 7, 2024, the Committee on Energy
and Commerce held a full committee hearing to review
H.R. 7521. The title of the hearing was ``Legislation
to Protect Americans from the National Security Threats
Posed by Foreign Adversary Controlled Applications.''
The Committee met in executive session pursuant to a
motion by Chair Rodgers, which was adopted by a record
vote of 43 yeas and 0 nays.
COMMITTEE COST ESTIMATE
Pursuant to clause 3(d)(1) of rule XIII, the Committee
adopts as its own the cost estimate prepared by the Director of
the Congressional Budget Office pursuant to section 402 of the
Congressional Budget Act of 1974. At the time this report was
filed, the estimate was not available.
EARMARK, LIMITED TAX BENEFITS, AND LIMITED TARIFF BENEFITS
Pursuant to clause 9(e), 9(f), and 9(g) of rule XXI, the
Committee finds that H.R. 7521 contains no earmarks, limited
tax benefits, or limited tariff benefits.
ADVISORY COMMITTEE STATEMENT
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
APPLICABILITY TO LEGISLATIVE BRANCH
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION
Section 1. Short title
This Section provides that the Act may be cited as the
``Protecting Americans from Foreign Adversary Controlled
Applications Act''.
Section 2. Prohibition of Foreign-Adversary Controlled Applications
Subsection (a)(1) makes it unlawful for an entity to
distribute, maintain, update, or enable the distribution,
maintenance, or updating of a foreign adversary controlled
application in the United States.
Subsection (a)(2) provides the applicable dates of
prohibitions in subsection (a)(1), which is 180 days after
enactment for the foreign adversary controlled applications in
(g)(3)(A), and beginning 180 days after the relevant
determination in (g)(3)(B) that such application poses an
unacceptable risk to national security.
Subsection (b) requires a foreign adversary controlled
application to provide any U.S. user with all available data
related to their account provided by that application, upon
request by the user, in a machine readable format, including
any data maintained by the application regarding the user's
account, such as the user's content and all other account
information.
Subsection (c) provides the exemptions for the prohibition
in subsection (a). It provides that the prohibition in
subsection (a) does not apply to a foreign adversary controlled
application regarding which a qualified divestiture is executed
and shall cease to apply if a qualified divestment is executed
after the effective date. This subsection also states that
subsection (a) also does not apply to services provided with
respect to a foreign adversary controlled application that are
necessary for an entity to attain compliance with this Act.
Subsection (d) outlines the civil penalties for an entity
found violating subsection (a) or subsection (b). An entity
found violating subsection (a) shall be subject an amount not
to exceed the amount that results from multiplying $5,000 by
the number of U.S. users determined to have accessed,
maintained, or updated an application. An entity found
violating subsection (b) shall be subject to a civil penalty in
an amount not to exceed $500 per U.S. user with an account
provided by that application. This subsection also directs the
Attorney General to conduct investigations related to potential
violations of this Act and pursue enforcement if a violation
has occurred.
Subsection (e) is a severability provision. If any
provision of this section or the application of this section to
any person or circumstance is held invalid, the invalidity
shall not affect the other provisions or applications of this
section that can be given effect without the invalid provision
or application. This subsection also clarifies that any
invalidity of subsection (g)(3)(A) shall not affect or preclude
the application from a determination as a foreign adversary
controlled application under subsection (g)(3)(B).
Subsection (f) is a rule of construction stating that
nothing in this Act may be construed to authorize the Attorney
General to pursue enforcement other than what is specifically
stated in this Act. It does not authorize the Attorney General
to pursue enforcement against any individual user of the
foreign adversary controlled application, nor does it alter or
affect any other authority provided by or established under
another provision of Federal law.
Subsection (g) defines key terms used throughout Section 2,
including:
(1) The term ``Controlled by a Foreign Adversary'' means
(A) a foreign person that is domiciled in, headquartered in,
has its principal place of business in, or is organized under
the laws of a foreign adversary country; (B) an entity in which
an entity or combination of entities identified in subparagraph
(A), directly or indirectly owns a twenty percent stake or
greater; or (C) an entity subject to the direction, or control,
or of an entity identified in subparagraph (A) or (B).
(2) The term ``Covered Company'' means an entity that
operates, directly or indirectly, including through its parent
company, subsidiaries, or affiliates, a website, desktop
application, mobile application, or augmented or immersive
technology application that permits a user to create an account
or profile to generate, share, and view text, images, videos,
real-time communications, or similar content; has more than
1,000,000 monthly active users for a majority of months during
the preceding 3 months the Presidential determination; enables
one or more users to generate or distribute content that can be
viewed by other users of the website, desktop application,
mobile application, or augmented or immersive technology; and
enables one or more users to view content generated by other
users of the website, desktop application, mobile application,
or augmented or immersive technology.
(3) The term does not include any website, desktop
application, or mobile application in the United States whose
primary purpose is to allow users to post product reviews,
business reviews, or travel information and reviews.
(4) The term ``Foreign Adversary Controlled Application''
means a website, desktop application, mobile application, or
augmented or immersive technology application is that is
operated, directly or indirectly, including through its parent
company, subsidiaries, or affiliates by:
(A) any of (i) ByteDance, Ltd.; (ii) TikTok; (iii) a
subsidiary of or a successor to ByteDance, Ltd. or
TikTok that is controlled by a foreign adversary; or
(iv) a company owned or controlled directly or
indirectly by such an entity; or
(B) a covered company that is controlled by a foreign
adversary; and that is determined by the President to
present a significant threat to the national security
of the United States following the issuance of a public
notice of the proposed presidential determination, a
public report to Congress, to be submitted not less
than 30 days prior to the presidential determination,
describing the specific national security concern,
which shall contain a classified annex, and describing
what assets would need to be divested to be a qualified
divestiture.
(5) The term ``Foreign Adversary Country'' means the
countries identified pursuant to section 4872(d)(2) of title
10, United States Code (North Korea, People Republic of China,
Russia, Iran).
(6) The term ``Internet Hosting Service'' means a service
through which storage and computing resources are provided to
an individual or organization for the accommodation and
maintenance of one or more websites or online services, and
which may include file hosting, domain name server hosting,
cloud hosting, and virtual private server hosting.
(7) The term ``Qualified Divestiture'' means a divestiture
or similar transaction that the President, through an
interagency process, determines results in the foreign
adversary controlled application no longer being controlled by
a foreign adversary; and the President determines, through an
interagency process, precludes the establishment or maintenance
of any operational relationship between the foreign adversary
controlled application's United States operations after the
date of the transaction and any formerly affiliated entities
that are controlled by a foreign adversary, including, but not
limited to, any cooperation with respect to the operation of a
content recommendation algorithm or agreement with respect to
data sharing.
(8) The term ``Source Code'' means the combination of text
and other characters comprising the content, both viewable and
nonviewable, of a software application, including any
publishing language, programming language, protocol, or
functional content, as well as any successor languages or
protocols.
(9) The term ``United States'' means the ``United States''
including the territories of the United States.
Section 3. Judicial review
This section requires any review challenging this Act to be
filed only in the United States Court of Appeals for the
District of Columbia Circuit. Subsection (b) provides that the
United States Court of Appeals for the District of Columbia
Circuit shall have exclusive jurisdiction over any challenge to
this Act, or any action, finding, or determination under this
Act. Subsection (c) places, upon enactment, a 165-day statute
of limitation on any challenge to this Act. This subsection
also places a 90-day statute of limitations on any challenges
to an action, finding, or determination under this Act.
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
This legislation does not amend any existing Federal
statute.
[all]