On Petitions for Review of Constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act
GINSBURG, Senior Circuit Judge: On April 24, 2024 the President signed the Protecting Americans from Foreign Adversary Controlled Applications Act into law. Pub. L. No. 118-50, div. H. The Act identifies the People’s Republic of China (PRC) and three other countries as foreign adversaries of the United States and prohibits the distribution or maintenance of “foreign adversary controlled applications.”1 Its prohibitions will take effect on January 19, 2025 with respect to the TikTok platform.
Three petitions — filed by ByteDance Ltd. and TikTok, Inc.; Based Politics, Inc.; and a group of individuals (“Creators”) who use the TikTok platform — which we have consolidated, all present constitutional challenges to the Act. We conclude the portions of the Act the petitioners have standing to challenge, that is the provisions concerning TikTok and its related entities,survive constitutional scrutiny. We therefore deny the petitions.
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1 A foreign adversary controlled application is defined in § 2(g)(3) as “a website, desktop application, mobile application, or augmented or immersive technology application that is operated, directly or indirectly (including through a parent company, subsidiary, or affiliate), by”: (A) any of — (i) ByteDance, Ltd.; (ii) TikTok; (iii) a subsidiary of or a successor to an entity identified in clause (i) or (ii) that is controlled by a foreign adversary; or (iv) an entity owned or controlled, directly or indirectly, by an entity identified in clause (i), (ii), or (iii); or (B) a covered company that — (i) is controlled by a foreign adversary; and (ii) that is determined by the President to present a significant threat to the national security of the United States following [certain procedures].
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