TIKTOK INC. AND BYTEDANCE LTD.,PETITIONERSv.MERRICK B. GARLAND, IN HIS OFFICIAL CAPACITY ASATTORNEY GENERAL OF THE UNITED STATES,RESPONDENT
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.
**
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].