MIKE WACKER: Did critics read the TikTok bill?

In Silicon Valley, a common slang term is RTFM: read the f***ing manual. In DC, perhaps we need to introduce RTFB: read the frigging bill. (I use a different “f” word for our friends in Utah.) Does the TikTok bill, which passed the House on a 352-65 vote, ban TikTok? No. Can it be used to target Elon Musk and X/Twitter? No. To answer these and other questions, let’s read the frigging bill.

First, if you’ve described this bill as a TikTok ban, then you’ve clearly not read the bill. It forces a sale of TikTok so that the Chinese Communist Party (CCP) can no longer control it; a ban only occurs if TikTok is not divested away from the CCP.

Nonetheless, reading a bill is harder than reading a manual—though it’s a teachable skill. When reading a bill, a key point to keep in mind is that the legal meaning of a word or phrase is often different from its common meaning. (Many bad arguments implicitly rely on the common meaning of a word or phrase, instead of its legal meaning.) When we’re dealing with a phrase like “foreign adversary country” or “controlled by a foreign adversary,” remembering that key point is crucial.

The President, for example, can’t arbitrarily label a country as a “foreign adversary country.” That phrase has a precise legal definition in the bill: China, Russia, Iran, or North Korea. The only way to add countries to that list is to pass a new law; the President can’t add nations willy-nilly. Jokes about Justin Trudeau aside, Canada legally is not a foreign adversary country. So no, the TikTok bill cannot be used to target Rumble, which is a Canadian company.
Another key phrase, “controlled by a foreign adversary,” also has a precise legal definition. This definition is crucial; if a social media app is not controlled by a foreign adversary, the President has no power over that app—even if he dubiously labels it a national security threat.

Legally, a social media app can be “controlled by a foreign adversary” in one of three ways. Subparagraph (A) of the definition applies if the company “is domiciled in, is headquartered in, has its principal place of business in, or is organized under the laws of a foreign adversary country.” Remember, “foreign adversary country” here means China, Russia, Iran, or North Korea. Subparagraph (B) is similar, but it applies when a foreign entity has a 20% ownership stake.

(If you’re wondering why it’s 20%, that threshold is reused from a previous telecommunications law that restricts foreign ownership of mass communications media, such as radio and broadcast.)

While both subparagraphs (A) and (B) seem reasonable, critics such as David Sacks have honed in on subparagraph (C). It applies if a company is “subject to the direction or control of a foreign person or entity described in subparagraph (A) or (B).” Is that language too vague and broad? Could an anti-Elon lawyer successfully argue that Elon Musk is subject to the direction of the CCP? No.

Unlike certain libertarians—who play fast and loose with the facts to win an argument—I will not whitewash Musk’s connections to China here. Musk is deeply entangled in China via Tesla. When pressed by Bari Weiss, Musk conceded that Twitter would carefully choose its words regarding China as a result, and Musk also said there are “two sides” to China’s genocide of the Uyghurs.

As troubling as these facts are, however, Musk is still not legally subject to the direction of the CCP.

While “direction or control” does not have an explicit definition, this phrase is used in many other laws, such as the Foreign Agents Registration Act (FARA). We have a good idea of what it means—and does not mean—from the other laws that use that phrase, and the court cases which have interpreted those laws.

As a result, the burden of proof is on the critics. If they want to argue that “direction or control” can be abused, then point to the court case where it was abused—be it for FARA or any other law using that phrase. To the contrary, in one court case, the court clarified that one is not subject to direction or control “simply by acting in accordance with foreign interests or by privately pledging allegiance.”

Adversaries will obviously try to circumvent the law. They may, for example, only acquire a 10% stake in a company (the law requires a 20% stake), but also acquire a majority of the voting rights. “Direction or control” strikes the right balance: it provides the flexibility needed to deal with such creative arrangements, but it is also a well-understood term that cannot be abused.

Could the TikTok bill be used to target Elon Musk and Twitter? If you don’t know how to read a bill, there are many specious arguments that could trick you into thinking that the answer is yes. If you know how to read a bill, though, the answer is a clear no.

Image: Title: tik tok


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